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Collection  of  Speeches  In 

Congress  on  the  Goneva  Av;ard 


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DISTRIBUTION  OF  THE  GENEVA  AWARD. 


The  plain  and  common  rules  of  honesty  and  fair  dealing  are  as  obligatory 
in  arbitraments  between  nations  as  between  individuals. 


SPEECH 


HON.  ELIJAH  WARD, 

IN    THE 

HOUSE   OF   REPRESENTATIVES, 

^AY    23,     1876. 


Our  country  obtained  tlie  money  through  the  award  of  a  great  international 

court  representing  the  leading  civilized  nations,  with  the  hope  not  only 

of  solving  the  difficulties  which  then  existed,  but  of  establishing  a 

precedent  which  would  tend  to  promote  human  progress  by 

substituting  just  and  honorable  arbitrament  for  settlements 

through  brute  force  and  the  horrors  of  war.     We  are 

bound  to  respect  the  rulings  of  the  court;  and 

those  whose  good  opinion   is  best  worth 

deserving  will  judge  us  by  the  disposal 

we  make  of  the  funds  committed 

to  our  charge. 


WASHINGTON. 
1876. 


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DISTRIBUTION  OF  THE  GENEVA  AWARD. 


The  plain  and  common  rules  of  honesty  and  fair  dealing  are  as  obligatory 
in  arbitraments  between  nations  as  between  individuals. 


SPEECH 


HON.  ELIJAH  WARD, 


HOUSE   OF   REPRESENTATIVES, 

May  23,    1876. 


Our  country  obtained  the  money  through  the  award  of  a  gre.it  international 

court  representing  the  leading  civilized  nations,  with  the  hope  not  only 

of  solving  the  difficulties  which  then  existed,  but  of  establishing  a 

precedent  which  would  tend  to  promote  human  progress  by 

substituting  just  and  honorable  arbitrament  for  settlements 

through  brute  force  and  the  horrors  of  war.     We  are 

bound  to  respect  the  rulings  of  the  court;  and 

those  whose  good  opinion  is  best  worth 

deserving  will  judge  us  by  the  disposal 

we  make  of  the  funds  committed 

to  our  charge. 


WASHINGTON 
1876. 


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Distribution  of  the  Geneva  Award. 
SPEECH 

OF 

HON.  ELIJAH  WARD. 


The  House  haviug  resolved  itself  into  Committee  of  the  whole  on  the  State  of 
the  Union,  ilr.  Si'uixgeu  in  the  Chair,  and  proceeded  to  consider  the  bill  making 
\        appropriations  for  the  Indian  Department — 
Mr.  "Ward  said : 
^^  Mr.  Cii.vir.man:  Before  proceeding  with  tlie  remarks  which  I  pro- 

'>— )       pose  iipou  the  distribution  of  the  award  made  by  the  tribmial  at 
-_      Geneva  for  losses  sustained  by  citizens  of  the  United  States,  I  ask 
A      the  Clerk  to  read  a  paper  which  I  send  to  the  desk. 
The  Clerk  read  as  follows : 


I       Tothe  honorable  the  Senateand  House  of  Representatives  of  the  United  States  of  Amer- 
n>  i^a  in  Congress  assembled : 

^         The  undersifpiod,  marine  underwriter.'!,  owners  of  claims  by  reason  of  which  the 
^        moncj-  paid  by  Great  Britain  was  awarded  bj*  the  tribunal  of  arbitration  at  Geneva, 
'j^      rcspcctfullj'  remonstrate  again.st  tlie  passage  of  the  House  bill  No.  2G85,  reported  to 
"\      the  House  of  Representatives  by  Mr.  Lokd,  from  the  Judiciary  Committeo.   The  pro- 
•       posed  bill  disregards  the  decisions  and  proceedings  of  the  tribunal  in  tlio  rejection 
^      and  allowance  of  claims,  denies  or  ignores  tlio  just  riglits  of  lawful  owners  of  prop- 
erty the  value  of  which  entered  into  the  award,  and  fails  to  satisfy  the  trust,  duty, 
and  obligation  of  the  Government  of  the  United  States  toward  those  upon  or  by 
VI      rea.son  of  whose  legal  rights  it  obtained  the  award  and  collected  the  money.    And 
v)       the  provision  for  admitting  these  rightful  claimants  to  a  share  of  a  supposed  sur- 
I)lus,  aft<!r  b(;.Htowal  of  tlio  fund  upon  invalid  and  improjiorly  preferred  claims, 
^1      which  were  wholly  rejected  by  the  tribunal  and  arc  necessarily  indelinite  in  amount, 
^      does  not  in  anywise  obviate  or  correct  the  injustice. 

\  Each  of  yojir  petitioners,  which  is  a  mutual  society,  further  respectfully  pro- 

tests against  bestowal  of  the  money  of  the  society  upon  what  are  termed  war-pre- 
mium claimants,  who  do  not  enibr.ico  but  a  fragment  of  its  dealers,  and  who  do  em- 
brace strangers  not  dealing  with  it  at  all.  Such  a  disposition  of  the  money  would 
not  only  bo  in  disreg.ird  of  just  and  legal  right,  but  woiiM  violate  the  fundamental 
contract  entitling  each  member  to  his  just  proportion  of  tlie  conimcm  reclamations. 
It  would  alsoniinglc  and  unjustly  confuse  thr  jiropi^rty  of  one  .society  audits  mem- 
bership with  that  of  another  society  and  its  membership. 


426167 


Tour  remonstrants  respectfully  submit  that  the  bill  reported  on  16th  March  last 
from  the  Judiciary  Committee,  by  Mr.  Knott,  provides  for  what  is  demanded  by 
rijjht  and  justice  and  the  honor  of  the  nation.    And  they  ask  that  it  maybe  passed. 
Dated  New  York.  April  4,  187G. 

ATLANTIC  MUTUAL  IN^S.  CO,, 

By  Charles  Dennis,  Vice-President. 
COMMERCIAL  MUTUAL  INS.  CO., 

By  Saml.  Drake  Smith,  President. 
UNION  MUTUAL  INS.  CO., 

By  r.  S.  Lathop,  President. 
MERCANTILE  MUT.  INS.  CO., 

By  Edwakd  "Walter,  President. 
SUN  MUTUAL  INS.  CO., 

By  J.  P.  Paulisok,  President. 
NEW  YORK  MUTUAL  INS.  CO., 

By  T.  B.  Blucher,  Jr.,  Vice-President, 
PACIFIC  MUTUAL  INSURANCE  CO., 

By  Jno.  K.  Myers,  President. 
THE  GREAT  "WESTERN  INS.  CO., 

ByFERD.  MOTZ,  President. 

Mr.  WAED.  Mr.  Chairman,  at  the  request  of  many  of  my  constit- 
uents, "who  are  deeply  interested,  and  in  accordance  "n-ith  my  own 
sense  of  right  and  duty,  I  present  to  the  House  as  briefly  and  dis- 
tinctly as  practicable  my  views  on  the  important  subject  of  the  dis- 
tribution of  the  funds  awai-ded  by  the  tribunal  of  arbitration  at  Ge- 
neva. In  my  opinion  the  length  of  the  discussion  regarding  it  is  to 
be  attributed  rather  to  the  magnitude  of  the  amount  involved  than  to 
any  intrinsic  difficulty  in  imderstandiug  or  determining  the  princi- 
ples of  law  and  justice  so  far  as  they  are  applicable  to  this  case. 

During  the  war  various  insurance  companies  and  private  claim- 
ants sent  memorials  to  the  Department  of  State,  setting  forth  their 
demands  against  Great  Britain  for  losses  growing  out  of  the  destruc- 
tion of  vessels  and  their  cargoes  by  the  cruisers  of  the  insurgents,  and 
requested  the  interposition  of  the  Government  of  the  United  States 
in  their  behalf.  The  underwriters,  confidently  relying  on  the  ulti- 
mate protection  of  their  rights  by  their  country,  from  time  to  time, 
as  they  paid  for  vessels  and  cargoes  destroyed  by  the  cruisers,  com- 
municated to  the  State  Department  full,  formal  proofs  of  the  facts 
and  of  the  value  of  the  losses.  The  Department  through  the  Hon. 
William  H.  Seward,  then  Secretary  of  State,  punctiliously  (as  was  hia 
duty)  replied  to  each  of  the  statements  thus  made,  and  transmitted 
the  claim  "to  the  United  States  minister  at  London,  with  a  view  to 
such  reparation  as  may  be  justly  due." 

Afterward,  when  the  war  was  over,  the  Government,  through  the 
Department  of  State,  i.ssued  an  ofiicial  notice,  dated  September  22, 
18C5,  calling  upon  "citizens  of  the  United  States  having  claims 
against  foreign  governments,  not  founded  on  contracts,"  to  forward 
them  to  that  Department,  urgently  asked  compliance  "  without  de- 
lay," and  accompanied  the  notice  with  rules  for  thcTguidance  of  ap- 


plicaiits,  directing  the  insertion  in  each  claim  of  a  request  "  for  the 
interposition  of  this  Government  with  the  foreign  government  against 
which  the  claim  is  presented."  In  accordance  with  the  trust  thus 
confided  to  our  Government  hy  the  sufferers,  the  claims  were  duly 
presented  to  the  government  of  Great  Britain  aud  subsequently  to 
the  tribunal  at  Geneva. 

In  pursuance  of  the  same  line  of  manifest  duty,  requiring  every 
government  to  afford  due  protection  to  its  citizens  or  subjects,  Mr. 
Fish,  as  Secretary  of  State,  replied  to  letters  inclosing  claims  of 
the  class  already  described,  promised  that  his  Department  would 
"  present  to  the  tribunal  at  Geneva,  to  be  taken  into  account  in  es- 
timating the  sum  to  be  paid  to  the  United  States,  all  claims  growing 
out  of.  the  acts  of  the  several  vessels  which  have  given  rise  to  the 
claims  generally  known  as  the  Alabama  claims,"  and  requested  that 
they  might  be  presented  in  due  time. 

The  claims  were  duly  presented  by  our  Government  to  the  tribunal 
at  Geneva,  in  accordance  with  the  treaty  of  Washington.  Through- 
out all  the  proceedings  they  were  uniformly  treated  as  the  claims  of 
private  parties,  who  on  their  part  placed  implicit,  unquestioning  trust 
and  coufitlence  in  the  due  i)rotection  and  good  faith  and  integrity  of  the 
Government.  All  doubt  or  question  as  to  their  rights  or  the  disposal 
of  the  funds  is  an  after-thought,  having  no  origin  in  the  tribunal  and 
contrary  to  its  intentions  and  conclusions. 

In  formally  submitting  its  case  to  the  tribunal,  the  Government  of 
the  United  States  jdaced  first  in  the  general  statement  of  the  claims 
for  which  it  asked  reparation  "the  direct  losses  growing  out  of  the 
destruction  of  vessels  and  their  cargoes  by  the  insurgent  cruisers." 
The  other  injuries  for  which  compensation  was  sought  were — 

The  national  expenditure  in  the  pursuit  of  those  cruisers ; 

The  loss  in  the  transfer  of  the  American  commercial  marine  to  the 
British  flag ; 

The  enhanced  payments  of  insurance  ; 

The  prolongation  of  the  war,  and  the  addition  of  a  large  sum  to  the 
cost  of  tlie  war  and  the  suppression  of  the  rebellion. 

Great  Britain  objected  to  the  presentation  of  the  three  latter  classes 
of  claims,  and  refused  to  proceed  with  the  arbitration  unless  they  were 
withdrawn.  The  United  States  refused  to  withdraw  thorn.  A  failure 
of  tlio  arbitration  was  imminent.  At  this  crisis,  the  president  of  the 
tribunal,  on  belialf  of  all  tlie  ar1)itrators,  announced  that  they,  after 
the  most  careful  perusal  of  all  that  had  been  said  on  the  part  of  the 
Goveninient  of  the  United  States  in  respect  to  these  classes  of  claims, 
had  "arrived  individually  and  collectively  at  the  conclusion  that 
these  claims  do  not  constitute,  upon  the  jirinciples  of  international 
law  ai)plicable  to  such  cases,  gooil  foundation  for  an  award  of  com- 
pensation or  computation  of  damages  l)etween  nations,  and  should 


G 

upon  such  principles  be  wholly  excliulccl  from  the  consideration  of  the 
tribunal  in  making  its  award."  The  United  States  authorized  their 
agent  to  state  that  they  accepted  this  declaration  as  determinative 
of  the  judgment  of  the  arbitrators  on  the  important  question  of  pub- 
lic law  involved,  and  that  these  classes  of  claims  might  be  excluded 
from  consideration  in  any  award  that  might  be  made. 

Subsequently,  by  protocol  27,  dated  August  29,  1872,  a  majority  of 
the  tribunal  decided  to  reject  the  claims  for  expenditures  incurred  in 
pursuit  of  the  cruisers,  on  the  ground  that  they  were  comprised  in 
the  cost  of  the  war. 

Thenceforth  there  remained  only  for  consideration  by  the  tribunal 
the  claims  for  direct  losses  growing  out  of  the  destruction  of  vessels 
and  their  cargoes  by  the  insurgent  cruisers.  The  basis  of  the  award 
was  f  ui'ther  and  distinctly  narrowed  down  by  the  tribunal  to  the  pri- 
vate losses  growing  out  of  the  destruction  of  vessels  and  their  car- 
goes by  the  acts  of  the  Alabama,  the  Florida,  and  their  tenders,  and 
the  Shenandoah  after  she  left  the  i^ort  of  Melbourne.  In  accordance 
with  this  decision  the  arbitrators  requested  the  Government  of  the 
United  States  to  furnish  them  with  definite  information  as  to  the 
amount  of  such  losses,  and,  complying  with  the  request,  on  the  19th 
of  August,  1872,  a  schedule  was  presented  on  behalf  of  our  Govern- 
ment enumerating  specifically  the  vessels  destroyed  by  the  cruisers 
for  whose  acts  Great  Britain  was  held  to  be  liable,  showing  the  value 
of  each  vessel  so  destroyed  and  of  her  cargo,  as  proved  by  the  claims 
filed  for  it,  including  those  of  the  insurance  companies. 

The  judgment  of  the  tribiuial  was  that  there  had  been  a  violation 
of  the  obligations  of  neutrality  on  the  part  of  Great  Britain ;  that  she 
was  consequently  "responsible  for  the  American  shiiis  which  were 
destroyed  by  the  vessels  in  question."  In  view  of  this  decision,  the 
only  remaining  duty  of  the  tribunal  was  either  to  ascertain  and 
award  to  the  United  States  such  a  sum  in  gross  as  was  deemed  suffi- 
cient to  cover  those  private  losses,  as  it  was  empowered  to  do  by  the 
seventh  article  of  the  treaty,  or  to  remit  the  duty  of  auditing  each 
claim  for  the  losses  to  a  board  of  assessors,  as  provided  in  article  10. 
The  former  was  deemed  the  most  satisfactory  course.  Its  adoption 
was  requested  on  the  part  of  this  country,  and  the  gross  sum  of 
$15,500,000  was  accordingly  awarded  to  the  United  States.  The  ma- 
jority was  four  to  one.  The  award,  of  course,  included  alike  such  of 
the  destroyetl  vessels  as  were  insured  and  those  which  were  uninsured. 
In  determining  what  sum  in  gross  should  be  awarded,  the  tribunal  con- 
eidered.  the  claims  on  the  proofs  submitted  to  it,  those  of  the  insu- 
rance companies  being  the  most  conspicuous  among  the  claims  thus 
submitted. 

The  United  States  have  now  received  the  money,  have  admitted 
that  it  is  not  their  own,  and  established  a  special  court  for  its  dis- 


tribiition ;  but  have  closed  its  doors  agaiast  every  insurance  company 
Tvliich  cannot  show  that  its  "whole  business  during  the  four  years  of 
the  war,  so  far  as  the  war  risks  were  concerned,  was  unprofitable. 

At  this  point  it  becomes  necessary  to  consider  the  principles  on 
which  marine  insurance  is  conducted  among  commercial  nations.  It 
has  always  been  regarded  as  a  jiroposition  thoroughly  established, 
that  whatever  is  recovered  of  the  ship  or  cargo  insured  is  the  prop- 
erty of  the  insurer  who  has  paid  the  original  owner  the  value  of  it. 
It  would  be  superfluous  to  spend  time  in  proving  this  undeniable 
proposition.    Daniel  Webster  said  of  it : 

There  is  no  more  universal  maxim  of  law  and  justice  tlirougbout  tlie  civilized  and 
commercial  world  than  that  an  underwriter  who  has  paid  a  loss  on  ship  or  mer- 
chandise to  the  owner  is  entitled  to  whatever  may  be  received  from  the  property. 
His  right  accrues  by  the  very  act  of  payment.  And  if  the  property  or  its  proceeds 
be  afterward  recovered  in  whole  or  in  part,  whether  the  recovery  be  from  the  sea, 
from  captors,  or  from  the  justice  of  foreign  states,  such  recovery  is  for  the  benefit  of 
the  underwriter. 

It  was  upon  this  principle  that  the  claims  of  our  people  to  repara- 
tion for  the  British  violations  of  the  laws  of  neutrals  were  advanced 
by  our  Government.  On  the  jiart  of  Great  Britain  the  justice  of  our 
case  thus  urged  was  distinctly  admitted  in  the  words — 

The  American  insurance  companies  who  have  paid  the  owners  as  for  a  total  loss 
are  in  our  opinion  entitled  to  bo  subrogated  to  the  rights  of  the  latter,  according  to 
the  weUkno^^-n  principle  that  an  underwriter  who  haa  paid  as  for  a  total  loss  ac- 
quires the  rights  of  the  assured  in  respect  of  the  subject-matter  of  insurance. 

The  principle  of  marine  insurance  requiring  that  the  parties  who 
have  paid  the  owners  in  full  for  their  losses  shall  have  whatever 
may  be  afterward  recovered  is  seen,  even  on  slight  reflection,  to  be 
founded  on  morality  and  justice.  It  resembles  that  involved  where 
payment  of  a  note  is  guaranteed  for  a  pecuniary  consideration,  and,  the 
maker  refusing  to  pay,  the  note  is  paid  by  the  guarantor,  but  after- 
ward collected  from  the  maker.  Obviously  the  guarantor  who  haa 
paid  the  owner  in  full  is  entitled  to  all  that  is  recovered. 

Or,  to  take  an  illustration  yet  more  closely  analogous  to  the  case  in 
point,  a  vessel  fully  insured  does  not  arrive  at  the  port  when  she 
is  expected.  The  parties  who  have  agreed  to  pay  for  her  in  case  of 
los3  honorably  fullill  their  engagement,  and  fully  indemnify  the  own- 
ers. Ultimately  the  vessel,  having  been  detained  by  unforeseen 
causes,  comes  to  port.  To  whom  does  she  belong  ?  Manifestly  not 
to  the  original  owners.  They  have  been  i)aid,  and  in  law  and  justice 
have  transferred  their  claim  to  those  who  paid  them.  The  risk  has 
been  run,  but  there  has  been  no  loss.  Yet  further  from  all  right 
would  it  be  for  any  third  party,  even  the  United  States,  to  step  in 
and,  ])y  the  power  of  force,  give  the  vessel  to  other  parties. 

We  are  not  approacliing  the  subject  of  the  disposal  of  the  amount 
paid  to  us  aa  if  the  money  were  our  own,  to  be  given  as  wc  choose. 


8 

Two-thirds  of  it  remain  undistributed.  It  Avas  awarded  for  specific 
purposes  and  for  no  others,  and  the  money  was  paid  to  the  Govern- 
ment of  our  country  for  parties  whose  claims  were  admitted  to  be 
just  and  who  had  confided  them  to  the  Government  as  its  best  and 
truest  trustee. 

The  bill  reported  by  the  majority  of  the  Judiciary  Committee  makes 
provision  for  three  classes  of  claims.    It  provides : 

That  the  first  class  shall  be  for  claims  directly  resulting  from  damage  done  on 
the  high  seas  by  confederate  cruisers  during  the  Late  rebellion,  including  vessels 
and  cargoes  attacked  on  the  high  seas,  although  destroyed  ■within  four  miles  of 
the  shore,  except  as  provided  for  in  section  11  of  said  chapter  459.  The  second 
class  shall  be  for  claims  for  the  payment  of  premiums  for  war  risks,  whether  paid 
to  corporations,  agents,  or  individuals,  after  the  sailing  of  any  confederate  cruiser. 
The  third  class  shall  be  for  claims  for  sums  actually  paid  for  insured  property  de- 
stroyed on  the  high  seas  by  such  confederate  cruisers,  except  sums  for  which 
judgments  have  been  entered  under  section  12  of  said  chapter. 

That  judgments  entered  in  the  first  class  shall  be  paid  before  judgments  of  the 
second  class  are  paid ;  and  judgments  of  the  second  class  shall  be  paid  before  judg- 
ments of  the  third  class  are  paid.  If  the  sum  of  money  so  unappropriated  shall  be 
insuflicient  to  pay  the  judgments  of  the  first  class,  they  shall  bo  paid  according  to 
the  proportions  wliich  they  severally  bear  to  the  whole  amount  of  such  unappro- 
priated sum.  If  such  sum  shall  be  suflBcient  to  paj-  the  judgments  of  the  first  class, 
and  not  sufficient  to  pay  the  judgments  of  the  second  class,  the  latter  judgments 
shall  be  paid  according  to  the  proportions  which  they  severally  bear  to  the  residue 
of  such  unappropriated  sum.  If  such  sum  shall  be  sufficient  to  pay  the  judgments 
of  the  first  and  second  classes,  and  not  sufficient  to  pay  the  judgments  of  the  third 
class,  they  shall  be  paid  according  to  the  proportions  which  they  severally  bear  to 
the  residue  of  such  unappropriated  sum  after  the  payment  of  the  judgments  of  the 
first  and  second  classes. 

The  Geneva  tribunal  adjusted  only  the  liability  of  Great  Britain, 
for  the  admitted  depredations  committed  by  the  Florida,  Alabama, 
and  Shenandoah  after  leaving  Melbourne,  and  their  tenders,  the  Tus- 
caloosa, Clarence,  Tacony,  and  the  Archer,  and  excluded  from  consid- 
eration, in  the  award  of  damages,  the  Georgia,  Sumter,  Nashville,  and 
other  exculpated  cruisers.  In  opposition  to  this  decision,  the  bill 
allows  to  be  presented  claims  resulting  fiom  damage  done  on  the  high 
seas  by  all  "  confederate  cruisers  during  the  late  rebellion,"  without 
the  limitation  imposed  by  the  arbitrators  and  in  direct  conflict  with 
the  intent  and  decision  of  the  chosen  tribunal. 

In  equally  bad  faith  is  the  provi.sion  allowing  claims  for  the  pay- 
ment of  the  premiums  on  war  risks,  which  were  distinctly  ruled  out 
by  the  tribunal.  This  ruling  was  recognized  and  accepted  by  the 
agent  and  counsel  who  represented  our  Government  at  Geneva ;  and, 
to  make  yet  more  glaring  the  enormity  of  the  proposed  bill,  the 
claims  of  the  insurance  companies,  which  seem  to  come  clearly  within 
the  award,  are  placed  in  the  last  class,  without  ijossibility  of  pay- 
ment after  the  wrongful  demands,  excluded  by  the  tribunal  but 
placed  by  the  bill  in  the  finst  and  second  classes,  have  been  satisfied. 


9 

The  majority  of  the  Committee  say,  -with  an  evident  desire  to 
palliate  the  transparent  injustice  they  suggest  inflicting  on  the  in- 
surance companies,  that  the  first  class  of  claims  for  vrhich  provision 
is  made  in  this  bill  "svill  not,  they  think,  exceed  $1,500,000,  and  the 
second  class  $5,000,000,  leaving  $4,000,000  for  the  insurers.  A  signifi- 
cant commentary  on  these  estimates  is  that  the  chairman  of  the  Ju- 
diciary Committee  in  the  last  House,  who  urged  the  same  interests  aa 
have  priority  in  the  report  made  by  the  majority  of  the  present  com- 
mittee, in  answer  to  a  question  by  another  honorable  member,  replied 
that  the  bill  then  under  consideration,  and  which  is  now  a  law,  would 
require  only  §3,000,000  to  satisfy  the  claims  for  which  it  provided. 
As  matter  of  fact  it  has  taken  between  eight  and  nine  millions.  The 
probability  is  that  the  first  two  claims  for  which  provision  is  made  in 
the  bill  reported  by  the  committee  would  swell  in  larger  proportions. 

It  would  be  difficult  to  find  in  the  whole  history  of  pernicious  leg- 
islation a  precedent  more  dangerous  to  public  and  private  integrity 
than  the  perversion  of  the  funds  our  country  has  obtained  from  Great 
Britain  for  specific  purposes,  wliich  were  admitted  to  be  just,  to  other 
purposes  for  which  it  was  not  and  never  would  have  been  awarded. 
There  is  no  doubt  how  the  courts  would  decide,  and  I  regret  that  a 
knowledge  that  no  court  in  equity  would  reject  the  doctrine  of  subro- 
gation as  applied  to  the  insurance  companies,  should  be  assigned  as  a 
reason  why  Congress  ought  to  take  the  matter  into  its  own  hands 
and  make  its  own  will  the  law.  It  is  bad  enough  that  Congress  should 
disregard  settled  principles  and  rules  as  to  the  rights  of  property,  but 
that  such  a  doctrine  as  this  is  avowed  in  open  debate  in  this  House  is 
deeply  to  be  deplored.  Having  called  to  our  aid  in  settling  the  claims 
of  our  citizens  against  the  British  government  men  of  the  most  pro- 
found legal  knowledge  and  the  highest  character  among  other  lead- 
ing nations  of  the  world,  tlie  attention  of  civilized  mankind  is  di- 
rected toward  us.  The  reputation  as  well  as  the  honor  and  honesty 
of  our  countrj'  is  at  stake,  and  ,if  wo  fail  in  our  duty,  wo  shall  be 
deemed  now  and  through  future  history  to  have  added  publicly  and 
as  a  nation  a  portentous  ilhistration  to  the  already  long  catalogue  of 
the  too  prevalent  characteristics  of  the  times. 

While  the  facts  I  have  presented  are  beyond  doubt  or  cavil,  the  con- 
siderations which  should  regulate  our  decisions  aa  to  the  Alabama 
claims  are  so  unquestionable  as  to  be  out  of  the  region  of  debate.  I 
repeat  that  the  Government  of  our  country  obtained  the  money 
througli  tlic  award  of  a  great  international  court  appointed  by  the 
leading  civilized  nations,  witli  the  hope  not  only  of  solving  tlio  dilTi- 
culties  wliicli  then  existed,  but  of  establishing  a  i)rocedont  which 
would  tend  to  promote  human  ])rogrcs8  liy  substituting  just  and  hon- 
orable arbitrament  for  Hettlciiieiits  througli  l)rutc  force  and  the  hor- 
rors of  war.     Wo  arc  hoiind  to  respect  the  rulings  of  the  conrt;  and 


10 

those  whoso  good  opinion  is  best  worth  deserving  will  judge  ns  by 
the  disposal  we  make  of  the  funds  committed  to  our  charge. 

Our  Government  obtained  the  award  as  damages  for  the  destruc- 
tion of  private  property,  and  on  proofs  supplied  by  its  owners.  As 
the  Government  itself  never  owned  the  jiroperty,  it  cannot  possibly 
be  the  rightful^owncr  of  the  damages'or  |have  any  right  to  confiscate 
them. 

In  presenting  the  claims  before  the  court  as  grounds  for  damages, 
the  Government  insisted  upon  their  validity.  If  it  has  now  discov- 
ered that  they  were  invalid  and  that  it  was  an  error  to  present  them, 
only  one  alternative  remains.  The  plain  and  common  rules  of  hon- 
esty and  fair  dealing  are  as  obligatory  in  arbitraments  between  na- 
tions as  between  individuals ;  and  if,  after  recovery  of  damages,  the 
plaintiff  nation  ascertains  or  becomes  convinced  that  the  recovery  was 
founded  on  wrong  or  error,  it  is  bound  in  honor  and  good  faith  to  re- 
turn the  sum  improperly  collected.  While  Great  Britain  would  doubt- 
less be  unwilling  to  receive  again  any  part  of  the  sum  she  has  paid  to 
the  Government  of  the  United  States  under  the  award,  she  cannot  be 
expected  to  regard  without  interest  an  alienation  of  the  money  and 
its  application  to  objects  for  which,  by  so  high  a  tribunal,  it  has  been 
decided  that  she  is  not  responsible. 

The  duty  of  the  Government,  apart  from  this  alternative,  is  plain 
and  simple.  Having  received  the  money  as  the  value  of  private  prop- 
erty, it  is  bailee  or  trustee  for  the  owners.  Repiidiation  of  the  trust 
or  bailment  by  any  individual  under  the  same  circumstances  would 
be  severely  punished  in  a  court  of  justice.  The  nation  cannot  be 
sued,  but  it  is  therefore  so  much  the  more  firmly  bound  by  higher 
considerations  of  right  and  policy  to  render  no  less  justice  than  the 
private  trustee  would  be  constrained  to  do.  All  fair  consideration 
of  this  subject  leads  to  the  same  conclusions.  The  only  just  claim  on 
the  part  of  the  Government  is  the  one  -per  cent,  interest,  the  difference 
between  what  it  has  paid  and  received.  This  is  fairly  its  right,  and 
should  be  covered  into  the  Treasury. 

The  Government  ought  freely  and  promptly  to  submit  all  claims  upou 
which  the  award  was  based  to  proper  audit  before^the  distributing 
tribunal,  where  they  can  be  heard  upon  their  merits  and  decided  in 
accordance  with  the  principles  of  legal  right.  No  other  course  will 
afford  substantial  or  valid  protection  to  the  national.Treasury,  and  any 
indirect  or  arbitrary  procedure  cannot  fail  to  disgrace  our  country 
in  the  estimation  of  the  whole  civilized  world. 


o 


THE    OENEVA    AWARD. 


IT  MAY  BE  DISTRIBUTED  ACCOEDIXG  TO  JUSTICE 
EQUITY.  AND  GOOD  FAITH. 


^imitm'mmmBmmmiBm'if^mfmmm 


J    rv 


W.  McC 


OTi^    lOAVJV, 


HOUSE   OF   REPRESENTATIVES, 


June    8,    1876^ 


I87(i. 


SPEECH 


HOX.    GEORGE    W.    McCRARY 


The  H'u.-i-  'i.;i\  iMS  under  consideration  tlie  bill  (H.  K.  No.  2BS5)  for  the  distribu- 
tion of  tile  iinapi)ropriat«d  mouej-3  of  the  Geneva  award — 

Mr.  McCRAKYsaid: 

Mr.  Speakek:  I  desire  to  coufiue  my  remarks  upon  tliLs  bill 
mainly  to  what  I  regard  as  the  fundamental  inquiry  iu  the  discussion. 
That  inquiry  is  whether  the  fund  paid  into  the  hands  of  the  United 
States  as  tlie  proceeds  of  the  Geneva  arbitration  and  award  is  a 
trust  fund  which  we  are  bound  to  pay  to  certain  i>articular  claim- 
ants, or  whether  it  is  a  fund  paid  to  this  Government  to  be  dis- 
tributed according  to  its  discretion,  and  according  to  its  view  of 
what  is  required  by  equity  and  justice  and  good  faith  toward  its  own 
citizens.  This  I  say  is  the  fundamental  question.  If  it  be  decided, 
as  I  think  it  must  be,  that  the  Government  of  the  United  States  may 
exercise  its  discretion  in  the  disposition  of  tliis  fund,  then  I  think 
there  will  be  but  little  difficulty  iu  determining  what  ought  to  l)c 
done  with  it. 

One  class  of  the  claimants,  the  insurance  companies,  represented 
by  the  minority  of  the  committee,  have  already  been  enriched  by  war 
premiums  charged  and  received  ou  account  of  the  very  causes  which 
gave  rise  to  the  treaty  of  Washington  and  resulted  in  the  Geneva 
award.  In  order  that  the  importance  and  the  signiticance  of  this 
question  may  be  seen  by  the  House,  I  beg  to  state  a  few  facts  which 
have  now  pa.ssed  into  history  and  will  not  be  questioned. 

Very  soon  after  the  outbreak  of  the  war  of  the  rebellion  Great 
Britain,  animated  no  doubt  bj-  a  hope  that  her  oft-repeated  prophecy 
of  the  downfall  of  this  Republic  was  about  to  be  fulfilled, recognized 
the  belligerent  rights  of  the  Confederate  States.  That  recognition 
and  the  events  which  followed  gave  rise  to  what  were  known  as  the 
Alabama  claims,  to  the  treaty  of  Washington,  aiul  to  the  Geneva  ar- 
bitration. Before  that  recognition,  Mr.  Speaker,  our  commerce  was 
«afe  upon  the  high  seas.  The  confederacy  had  no  ships  of  war  and 
no  means  of  producing  them.  It  w:is  not  long  after  that  recognition 
until  a  liirgt'  iiunibfrof  conft-derate  cruisers  were  armed  and  e([uippe(l 
in  British  i)orts  and  let  loose  upon  tlie  high  seas  toi)rey  upon  Ameri- 
can commerce  and  to  destroy  American  shipping.  This,  in  a  word, 
was  the  cause  of  our  complaint  .igainst  Great  Britain.  It  was  main- 
tained by  the  Government  of  the  United  States  from  the  very  com- 
mencement tliut  the  losses  which  our  American  ship-owners  and  onr 
AnuTicaii  merchants  suffered  by  reason  of  tiicso  cruisers  were  caused 
by  t\w  hasty  recognition  of  the  bflligcrt'iit  rights  of  the  coufi'dorary 
and  by  the  sul>se([uent  course  of  the  government  of  Great  Britain  in 
permitting  rebel  <;rui.serH  to  (it  out.  in  and  sail  I'roni  ber  ports.     As  one 


of  the  u'sults  of  these  causes  the  rates  of  insiiranc;e  went  up  to  euoi- 
iiious  proportions.  The  insurance  companies  -who  insured  American 
ships  charged  very  high  war  premiums;  and  as  a  result  of  the  busi- 
ness of  insuring  American  ships  and  cargoes  against  war  risks,  the 
insurance  companies,  which  are  now  cLaimants  for  a  portion  of  this 
fund,  realized  a  profit  in  the  aggregate  of  more  than  ;ij*2,00(),000.  Va- 
rious ships  were  destroyed  that  were  not  insured.  Persons  who  paid, 
because  these  cruisers  were  abroad  upon  the  ocean,  large  sums  of 
money  as  war  premiums  now  ask,  and  I  think  justly,  to  be  indemni- 
iied  from  this  fund. 

It  is  not  my  purpose  to  enter  into  detail.  My  task  shall  be  to  es- 
tablish the  proposition  that  it  is  within  the  power  of  Congress  "to 
exercise  a  discretion  in  the  distribution  of  this  fund  and  so  to  dis- 
tribute it  as  to  pay  the  actiuil  losses,  so  as  to  pay.  the  actual  sufferers 
the  amounts  which  they  lost  by  reason  of  Great  Britain's  w-rong.  I 
maintain,  Mr.  Speaker,  that  Congress  is  not  bound  to  pay  over  this 
money  or  any  T)art  of  it  into  the  coffers  of  corporations  that  were 
enriched  by  the  recognition  of  the  confederacy  by  Great  Britain  and 
by  the  fact  that  confederate  cruisers  were  permitted  to  be  abroad 
upon  the  ocean.  If,  sir,  this  great  arbitration  between  these  two 
great  nations  has.hadno  other  result  than  this,  that  the  fund  received 
from  Great  Britain  in  order  to  carry  out  the  award  must  be  carried 
into  the  coiiers  of  corporations  that  lost  nothing  but  really  enriched 
themselves  by  reason  of  the  wrongs  for  which  our  damages  were 
allowed,  then  our  boast  as  to  the  honor  that  has  been  conferred  upon 
this  nation  by  the  treaty  of  Washington  and  the  Geneva  award  is  an. 
empty  boast. 

Now,  I  maintain  the  proposition  that  the  Government  of  the  United 
States  has  not  put  itself  in  this  attitude,  but  has  from  the  beginning 
to  the  end  of  this  great  and  to  us  higlilj^  honorable  controversy  reserved 
the  right  to  distribute  this  fund  as  right  and  justice  and  good  faith 
may  dictate.  If  I  can  settle  that  proposition,  I  think  there  will  be 
little  doubt  as  to  what  the  House  will  do  witli  the  pending  bill.  The- 
report  of  the  majority  provides  a  just,  an  equitable,  a  fair  distribu- 
tion of  this  fund,  a  distribution  such  as  I  am  sure  the  House  will  not 
hesitate  to  agree  to,  if  we  shall  find  that  this  discretion  exists. 

In  determining  this  question  it  is  proper  that  we  consider  the  treaty 
itself,  the  proceedings  at  Geneva,  and  the  award  of  the  arbitrators. 
I  maintain  that  by  reference  to  all, of  these  it  is  apparent  that  the 
Government  of  the  United  States  did  retain  control  of  this  fund  and 
the  right  to  dispose  of  it  to  actual  sufferers  by  reason  of  England's 
wrong,  bounded  only  by  the  subject-matter  of  the  arbitration.    ' 

But  before  I  come  to  consider  the  main  question,  let  me  call  the  at- 
tention of  the  House  to  a  preliminary  consideration.  This  question, 
Mr.  Speaker,  has  once  been  decided  by  Congress.  After  a  long  de- 
bate the  two  Houses  agreed,  and  a  bill  was  passed  which  is  now  the 
law  of  the  land  which  recognizes  the  doctrine  for  which  I  contend, 
and  which  provides  that  the  insurance  companies  which  made  money 
out  of  war  premiums  sliall  only  recover  the  amount  of  their  actual 
losses.    The  language  of  the  law  is  as  follows  : 

No  claim  sliall  be  admissible  or  allowed  by  .said  court,  by  or  iii  behalf  of  any  iu- 
Biiiance  coinpany  "  *  *  unless  such  claimaEt  shall  show  to  the  satisfaction  of 
said  court  that  (hiring  the  late  rebellion  the  sum  of  its  *  *  *  losses  in  respect 
to  its  *  *  "  war  nsks  exceeded  the  sum  of  its  ♦  *  *  premiums  or  other 
gainH  upon  or  in  respect  to  such  war  risks. 

Now,  Mr.  Speaker,  under  that  law  the  proper  court  has  distrilmted 
about  one-half  of  this  large  fund.     Upon  that  principle  about  ten  mill-. 


ions  of  the  twenty  million  dollars  originally  in  the  Treasury,  includ- 
ing interest  and  premium  on  gold,  has  been  distributed.  Now,  I  do 
not  say  that  this  Congress  may  not  reverse  the  policy  of  the  last  Con- 
gress ;  but  I  do  say  that  as  a  matter  of  public  policy  it  is  exceedingly 
impolitic  for  one  Congress  upon  a  subject  of  this  character  to  change 
the  iiolicy  established  by  another. 

Let  ns  look  at  it  for  a  moment.  Congress  has  deliberately  decided 
upon  a  rule  by  which  this  fund  shall  be  distributed.  By  that  rule  a 
large  class  of  claimants  ai'e  denied  relief  because  they  are  not' losers, 
liut  gainers,  on  account  of  the  acts  of  which  the  Governnieut  com- 
plained and  for  which  the  Government  received  this  money.  Under 
this  rule,  established  by  solemn  act  of  Congress,  we  have  proceeded 
until  the  fund  is  one-half  exhausted. 

Now,  sir,  if  that  rule  is  reversed,  if  it  l>e  now  declared  that  the  in- 
surance companies  are  entitled  to  this  money,  no  man  can  say  the 
fund  will  hold  out  until  they  are  all  paid,  because  one-half  of  it  has 
been  distriVmted  upon  the  other  theory.  And  if  the  fund  does  not 
hold  out,  who  will  undertake  to  say  these  corporations  will  not  suc- 
cessfully demand  tlie  payment  of  their  claims  out  of  the  Treasury  of 
the  United  States  for  any  balance  over  and  above  the  amount  of  the 
fund  ?  I  think,  Mr.  Speaker,  that  a  question  of  this  character  once 
decided,  once  passed  into  law,  ought  not  to  be  changed  unless  there  be 
very  grave  and  controlling  reasons  for  so  doing,  especially  after  a 
large  part  of  the  fund  has  been  distributed. 

But,  sir,  I  proceed  to  show,  as  I  believe  I  can,  from  the  treaty  itself, 
from  the  proceedings  at  Geneva,  and  from  the  award,  that  the  Gov- 
ernment of  the  United  States  has  retained  the  control  of  this  fund  ; 
tiiat  it  was  paid  to  this  Government  as  a  nation,  wi  thout  any  require- 
ment that  it  should  be  distributed  to  particular  claimants,  but  with 
the  distinct  understanding  that  the  Government  retained  the  right 
to  distribute  it  in  its  own  discretion. 

Mr.  HOOKER.  Will  the  gentleman  allow  me  to  ask  him  a  ques- 
tion for  information  ? 

Mr.  M«  CHARY.     Certainly. 

Mr.  HOOKER.  Are  you  prepared  to  state  what  proportion  of  this 
award  has  been  paid  to  tjiese  insurance  companies  in  comparison  to 
what  has  been  ])aid  to  actual  losers  ? 

Mr.  McCRARV.  Mr.  Speaker,  under  the  law  as  it  stands  insurance 
companies  are  t-ntitled  to  their  actual  losses,  and  lam  told  that  they 
liave  claimed  and  recovered  a  small  amount,  a  very  snjall  amount,  be- 
cause there  were  few  companies  that  did  not  make  money  out  of  war 
risks. 

Mr.  CAT'UFIELD.  The  amount  of  claims  put  in  was  $48,00U,  and 
they  1. roved  .Sl-i,O()0. 

Mr.  McCI.'ARV.  Now,  sir,  I  insist  under  the  treaty  it  was  intended 
that  if  a  sum  in  gross  should  "De  paid  to  the  United'States,  that  sum 
sliould  be  paifl  to  the  I'nited  States  as  a  nation  without  restriction  as 
to  tli(' disposition  r)f  tlit^  fund  by  this  Gyvernment.  By  reference  to 
th<'  treaty  it  will  be  seen  that  two  plans  were  proposed  for  the  settle- 
ment of  these  claims,  first  it  was  proposed  that  the  arbitrators 
might,  if  they  saw  fit,  provide  for  tlie  a))pointment  of  assessors  be- 
fore wiiom  all  private  claiinantsshould  present  their  claims  and  prove 
fliem  up.  Or,  if  that  was  not  agreed  to,  then  it  was  proposed  and 
l)roviiled  that  a  sum  in  gross  might  be  ]>aid  by  the  government  of 
(ireat  Britain  to  the  (Jovernment  of  the  IJnited  States. 

And  now  I  want  to  call  tlje  attention  of  the  House  to  the  two  arfi- 
eles  of  ;he  treaty,  tin;  one  whicli  |)rovides  for  the  a])i)ointmeiit  of  as- 


*>c-s  i^irf 


4261G 


6 

80SS01S,  and  tbe  other  which  provides  for  the  payment  of  a  sum  in- 
gross.  I  ask  the  especial  attention  of  the  House  to  tlie  difference 
between  these  two  articles,  because  the  difference  is  very  striking, 
and,  as  I  think,  very  significant.  If  the  proposition  to  refer  the 
claims  to  assessors  had  been  adopted,  then  it  was  provided  that 
those  assessors  should  be  guided  and  governed  in  the  allowance  of 
claims  by  the  decisions  and  tindings  of  the  board  of  arbitration.  But 
in  case  a  sum  in  gross  was  allowed  to  the  Government  of  the  United 
States,  a  very  different  provision  was  made.  In  the  latter  case  there 
is  no  limitation  to  be  found  in  the  award  except  this  :  that  the  sum 
paid  to  the  Government  of  the  United  States  shall  be  in  satisfaction 
of  all  the  claims  referred  to  the  tribunal. 

Let  me  call  the  attention  of  the  House  to  the  exact  language  of 
these  two  articles,  and  comment  briefly  on  them.  Article  7,  which 
relates  to  the  paj'ment  of  a  sum  in  gross,  i^rovides  as  follows  : 

In  case  tbe  tribunal  finds  that  Great  Britain  has  failed  to  fultill  any  duty  oi-  du- 
ties as  aforesaid,  it  may.  if  it  think  proper,  proceed  to  award  a  sum  in  gross  to  be 
paid  by  Great  Britain  to  the  United  States. 

For  what  ?  For  such  claims  as  the  arbitrators  have  specifically 
allowed  ?  For  any  particular  claims,  to  satisfy  any  class  of  claims  to 
the  exclusion  of  others  ?    No,  sir. 

To  be  paid  by  Great  Britain  to  tbe  United  States  for  all  the  claims  referred  to  it. 

For  all  the  claims  referred  to  the  tribunal.  Now,  sir,  that  is  pecu- 
liar language,  and  it  must  have  been  inserted  in  the  treaty  for  a  pur- 
pose. I  shall  show,  Mr.  Speaker,  presently  that  this  language  is  re- 
peated, with  little  variation,  several  times  in  the  treaty  and  in  the 
award. 

But  Avhen  you  contrast  it  with  article  10,  which  provides  for  the 
appointment  of  assessors,  the  House  will  discover  at  once  why  this 
difference,  why  this  peculiar  language  in  one  article  which  is  not 
found  in  the  other.  Article  10,  which  relates  to  the  allowance  of 
claims  by  assessors,  is  as  follows : 

In  case  the  tribunal  finds  that  Great  Britain  has  failed  to  fulfill  any  duty  or  dutie."! 
as  aforesaid  and  does  not  award  a  sum  in  gross,  the  high  contiacting  parties  agree 
that  a  board  of  assessors  shall  be  appointed  to  ascertain  and  determine  what  claims 
are  valid  and  what  amount  or  amounts  shall  be  paid  by  Great  Britain  to  the  United 
States  on  account  of  the  liability  arising  fiom  such  iailuie  as  to  each  vessel — 

Here  is  the  point  I  call  the  attention  of  the  House  to — 
as  to  each  vessel  according  to  the  extent  of  suth  liability,  as  decided  by  the  arbitrators. 

Now,  Mr.  Speaker,  why  was  not  that  language  in  article  7  ?  Why 
was  no  limitation  put  upon  the  Government  of  the  United  States  as 
to  the  disposition  of  this  fund  ?  It  was  provided  in  case  assessors 
were  appointed  they  should  be  guided  by  the  decisions  of  the  arbi- 
trators, and  it  was  provided  if  a  sum  in  gross  was  paid  to  the  United 
States  it  should  be  for  "all  the  claims  referred  to  the  tribunal." 

Now,  sir,  it  is  very  plain  that  a  dilierent  mode  of  distribution  was 
intended  under  section  10  from  that  which  is  provided  under  section 
7.  I  will  show  as  I  proceed  why  it  was  that  the  arbitrators  were 
careful,  and  why  it  was  that  fhis  language  was  inserted  ;  that  it  was 
simply  and  solely  because  it  was  the  settled  policy  of  the  United 
States  to  insi.st  that  this  Government  should  not  b.e  committed  as  to 
the  mode  or  manner  of  the  distribution  of  any  gross  sum  that  might 
be  allowed.  Hence  it  was  that  when  they  provided  for  a  sum  in 
gross  they  provided  nothing  but  that  it  should  be  in  satisfaction  of 
all  the  claims  ;  but  when  they  came  to  talk  about  submitting  these 
claims  to  assessors,  then  they  inserted  the  restrictions. 

It  was  of  importance  to  Great  Britain  in  case  the  claims  were  to  be 


settled  by  assessors,  ■without  any  maximnin  sum  being  named  in  the 
treaty,  that  the  rules  should  be  laid  down  whereby  these  claims  should 
be  determined  and  the  amount  paid  to  each  claimant  should  be  fixed. 
But,  sir,  when  it  was  proposed  to  pay  a  sum  in  gross  to  the  United 
States  in  satisfaction  of  all  claims,  it  became  a  matter  of  no  conse- 
(juence  whatever  to  Great  Britain  what  the  United  States  did  with 
the  money. 

I  shall  recur  again  to  some  other  features  of  the  treaty  before  I  con- 
clude, but  I  pass  now  to  show  by  the  proceedings  at  Geneva  tl>at  this 
Government  is  not  committed  as  to  the  disposition  of  this  fund.  Our 
policy  on  the  subject  was  declared  in  lauguage  that  cannot  be  mis- 
understood in  the  instructions  given  by  this  Government  to  our  coun- 
sel at  Geneva,  from  which  I  read  as  follows ;  and  as  I  regard  this  as 
very  signilicant,  I  would  like  to  have  the  attention  >of  the  House  to  it : 

The  President  desires  to  have  the  subject  discussed  as  one  between  the  two  gov- 
ernments, and  he  directs  me  to  tu-ge  upon  yon  strongly  to  secure  if  possible  the 
award  of  a  sum  in  gross.  In  the  discussion  of  this  question,  and  in  the  treatment 
of  the  entire  case,  you  will  be  careful  not  to  commit  the  Government  as  to  the  dis- 
position of  what  may  be  awarded.  *  *  *  The  Government  wishes  to  hold_ itself 
free  to  decide  as  to  the  rights  and  claims  of  insurers  upon  the  termination  of  the 
case.  If  the  value  of  the  property  captured  or  destroyed  be  recovered  iu  the  name 
of  the  Government,  the  distribution  of  the  amount  recovered  will  be  made  by  this 
(rovemment,  without  committal  as  to  the  mode  of  distribution. 

Now,  Mr.  Speaker,  if  the  cotmsel  of  the  United  States  before  the 
tribunal  at  Geneva  did  not  violate  the  instructions  given  by  this  Gov- 
ernment, then  I  say  that  this  Government  is  not  committed  as  to  the 
mode  of  distribution.  And  gentlemen  who  come  here  representing 
insurance  companies  and  claiming  that  this  Government  is  committed 
by  the  proceedings  and  the  award  at  Geneva  must  do  so  upon  the  as- 
sumption that  this  positive,  direct,  imperative,  and  explicit  instruc- 
tion given  by  the  Government  to  its  own  counsel  was  disregarded 
and  was  not  obeyed. 

Sir,  if  it  became  necessary  in  the  course  of  that  negotiation  for  the 
counsel  of  the  United  States  to  submit  to  a  decision  which  would 
compel  this  Government  to  pay  the.se  $20,000,000  into  the  coti'ers  of 
corporations  that  had  been  enriched  by  England's  wrongs,  if  it  be- 
came necessary  in  the  course  of  that  negotiation  for  our  counsel  to 
tletermine  the  question  whether  we  should  withdraw  from  the  arbi- 
tration or  tie  the  hands  of  this  Government  in  rluit  way,  it  would 
have  been  the  imperative  duty  of  the  counsel  on  the  part  of  the 
United  States  to  insist  upon  a  withdrawal  from  the  negotiation.  They 
were  commanded  by  their  Government  to  .see  to  it  that  the  Govern- 
ment of  the  United  States  was  left  free  as  to — 

"The  disposition  of  what  may  be  awarded"  and  especially  free  "  to  decide  as  to 
the  rights  and  claims  of  iiiHurevs  upon  the  termination  ot  the  case''  and  to  dis- 
tribute any  snni  recovered  in  the  name  of  the  govi-ruineiit  "  without  committal  as 
to  the  mode  of  ilistribntioii." 

But,  sir,  the  counsel  of  this  Governmer:t  were  not  false  to  their 
client  and  to  their  high  trust.  They  «lid  not  fail  to  do  their  duty. 
They  di<l  jiot  violate  the  order  and  the  instruction  wliich  this  Govern- 
ment liad  given  them.  They  were  careful  from  the  beginning  to  the 
end  of  the  negotiation  to  make  it  a  negotiation  between  the  two  gov- 
einiueiits  alone  and  not  in  any  nwinner  to  commit  this  Government 
to  do  injustice  as  between  its  own  citizens.  Our  counsel,  in  pursuam:e 
of  this  instruction,  said  to  the  tribunal : 

'I'hi'Ho  clalmB  are  all  preferred  by  the  United  States  as  a  nation  against  Great 
Hrilain  an  a  nbtion,  and  are  to  be  so  computed  and  y.iU\. 

Now,  sir,  what  did  they  moan  when  they  s.'ftd  that  this  money  was 
1o  br  jiaiil  to  flte  United  States  as  a  nation  f     It   follows  inevitably 


that  it  was  uol  paid  to  the  United  States  as  a  meie  at toruey  or  agent 
or  trustee  for  auy  class  of  chiimauts  whatever. 

Mr.  HURD.    The  nation  may  be  a  trustee. 

Mr.  McCRARY.  The  nation',  my  friend  from  Ohio  says,  may  be  a 
trustee.  So  it  may.  But  you  must  put  your  linger  on  the  authority 
•which  makes  it  a  trustee.'  AYhere  is  the  authority  in  all  these  pro- 
ceedings for  saying  that  this  Government  accepted  the  position  of  a 
trustee,  much  less  of  a  trustee  for  the  insurance  companies  or  for  any 
particular  class  of  these  claimants  ?  Why,  sir,  fromthe  very  beginning 
this  Government  insisted  that  all  these  wrongs  and  injuries  result- 
ing from  the  recognition  of  the  confederacy  as  a  belligerent  nation 
were  just  claims  of  damages  on  behalf  of  the  citizens  of  the  United 
States.  The  President  in  his  message  as  early  as  1870  recommended 
to  Congress  that  all  these  claims  be  allowed  and  paid  by  this  Govern- 
ment as  a  basis  for  a  claim  to  be  made  thereafter  by  the  United  States 
against  Great  Britain.  It  is  not  to  be  presumed,  sir,  that  this  Govern- 
ment, for  the  sake  of  collecting  money  to  be  paid  over  to  the  insurance 
companies,  intended  to  sacrihce  the  rights  of  other  claimants  whose 
claims  were  far  more  meritorious. 

Well,  sir,  did  the  Government  of  the  United  States  ever  waive  its 
right  to  distribute  this  fund  in  its  own  discretion  ?  If  so,  when  and 
where  ?  Not  surely  by  the  award  which  it  consented  to  and  under 
which  it  received  the  'money,  for  I  will  now  undertake  to  show  to  the 
House  that  the  most  conclusive  of  all  the  proof  on  this  subject  is  the 
award  itself,  and.  that,  Mr.  Speaker,  is  the  instrument  under  which 
the  money  was  paid.  If  anywhere  there  is  to  be  found  evidence  to 
show  what  the  United  States  was  to  do  with  this  fund,  surely  it  must 
be  in  the  award,  the  final  end,  conclusion,  and  summing  up  of  the 
whole  matter.  If  the  United  States  is  a  trustee  for  auy  particular 
class  of  claimants,  surely  we  will  find  some  evidence  to  that  efi'ect  in 
the  award  which  directed  the  money  to  be  paid. 

Now  let  us  turn  to  the  award  for  a  moment  and  see  how  careful 
the  representatives  of  the  United  States  were  to  carry  out  and  not 
violate  or  disregard  the  injunctions  of  the  Government  in  regard  to 
leaving  the  United  States  perfectly  free  and  in  no  manner  committed 
as  to  the  mode  of  distributing  this  fund.  I  read  now  from  the  award 
itself : 

The  tribunal,  making  use  of  the  authority  confen-ed  upon  it  by  article  7  of  the 
said  treaty,  by  a  majority  of  four  voices  to  one.  awards  to  the  CTnited  States  a 
sum  of  §15,500,000  in  gold,  as  the  indemnity  to  bo  paid  by  Great  Britain  to  tho 
United  StAt<'9,  for  the  satisfa-ctlon  of  all  the  claims  referred  to  the  consideration  of 
the  tribunal,  conformably  to  the  provisions  contained  in  article  7  of  the  aforesaid 
treaty. 

Now,  there  are  two  or  three  things  that  I  wish  to  call  attention  to 
iu  that  part  of  the  award.  The  money  was  awarded  to  the  United 
•States,  not  to  auy  claimants,  not  for  auy  particular  claimants,  but  "  as 
iudemuity  to  be  paid  by  Great  Britain  to  the  United  States,  for  the 
satisfaction  of  all  claims  referred  to  the  consideration  of  the  tribunal." 

Now,  Mr.  Speaker,  if  the  Government  of  the  United  States  took  the 
money  to  be  paid  to  a  particular  class  of  claimants,  to  the  insurance 
companies,  how  could  it  be  said  that  it  was  received  in  satisfaction  of 
all  claims  referred  to  in  the  treaty  ?  I  apprehend,  sir,  that  a  man 
who  owned  a  vessel  that  was  uninsured,  worth  $.50,000,  which  was  ruu 
down  and  destroyed  by  one  of  the  rebel  cruiser  not  mentioned  as  in- 
culpated by  the  tril>unal,  would  think  it  a  strange  sort  of  satisfaction 
of  his  claim  to  pay  the  juoney  over  to  the  United  States  to  be  applied 
to  other  people's  claims,  and  with  the  express  injunction  and  provis- 


9 

ion  that  the  Goverumeut  should  not  use  one  dollar  of  it  for  the  liqui- 
dation of  his  claim.  A  curious  sort  of  satisfaction  that.  And  yet  this 
solemn  instrument,  the  award  of  the  tribunal,  declares  that  this  sum 
is  paid  to  the  United  States  in  saiisf action  of  all  claims  referred  to  the 
consideration  of  the  tribunal,  ail  of  the  claims  known  as  Alabama 
claims.  Sir,  it  was  to  be  in  satisfaction  of  all  the  claims  because  this 
Government  took  the  money  to  distribute  as  it  might  deem  just. 
I  read  again  from  this  award  : 

And,  in  accordance  witli  tlie  terms  of  article  11  of  the  said  treaty,  the  tribunal 
declares  that  ■'  all  the  claims  referred  to  in  the  treaty  as  submitted  to  the  tribunal  are 
herebyfuUv.  perfectly,  and  fiually  settled.'  Furthermore,  it  declares  that  'eacii 
and  everyone  of  the  said  claims,  whether  the  same  may  or  may  not  have  been  pre- 
sented to' the  notice  of.  or  made,  preferred,  or  laid  before  the  tribunal,  shall  hence- 
forth be  considered  and  treated  as  finally  settled,  barred,  and  inadmissible." 

And  yet,  Mr.  Speaker,  it  is  seriously  contended  that  by  that  award 
the  Government  of  the  United  States  holds  this  fund  as  a  mere  trus- 
tee to  pay  to  a  certain  class  of  claimants.  The  award  was  not  for 
specific  claims.  If  such  had  been  the  purpose  of  the  tribtinal,  it 
would  have  been  very  easy  to  have  expressed  it.  The  tribunal  found 
no  difficulty  in  expressing  its  idea  in  reference  to  the  allowance  of 
claims  bv  assessors,  and  it  would  have  found  no  difficulty  in  saying, 
'•the  tribunal  awards  to  the  United  States  615,.500,000  for  the  purpose 
.  of  paying  the  claims  of  certain  claimants,  according  to  the  decisions 
of  the  tribunal."  It  would  have  been  easy,  I  say,  to  have  inserted 
language'  of  that  sort ;  but,  sir,  our  counsel  stood  there,  and  they  had 
been  instructed  by  their  Government  that  they  were  not  to  submit  to 
anj-thing  of  that  sort ;  that  this  Government  would  not  take  the 
money  if  it  should  be  bound  by  the  award  to  do  anything  with  it 
which  it  did  not  believe  to  be  right  and  just  in  its  dealings  with  its 
own  people,  and  hence  it  was  that  all  Great  Britain  demanded,  all 
the  United  'Stat<?s  submitted  to  was,  that  it  would  take  this  money 
and  it  would  be  considered  a  full  settlement  of  all  the  claims  referred 
to  the  tribunal,  not  all  the  claims  allowed  by  the  tribunal,  not  all  the 
claims  coming  within  the  interlocutory  decisions  of  the  tribunal,  but 
all  the  claims  referred  to  the  tribunal. 

Why,  sir,  it  is  even  provided  that  this  fund  paid  to  the  United 
States  shall  be  in  full  satisfaction  for  all  claims  whether  presented  to 
the  tribunal  or  not.  How  could  the  United  States  become  a  trustee 
for  the  payment  of  .specific  claims  under  an  instrument  like  that  ? 
A  trust  is  not  ordinarily  created  without  some  language  being  used 
implying  that  there  is  a  trust.  No  man  can  read  the  av/ard  of  the 
tribunal  which  I  have  read  to  the  House  and  say  that  it  was  in  the 
minds  of  the  arbitrators  to  limit,  prescribe,  and  control  the  mode 
of  di.stribnting  that  fund. 

Why,  sir,  the  men  who  sat  in  that  tribunal,  the  men  who  penned 
that  award,  were  great  and  learned  men  ;  they  knew  the  force  of  lan- 
guage, and  it  cannot  be  that  they  intended  any  such  thing  as  this  when 
they  used  the  language  to  which  I  have  called  the  attention  of  the 
House. 

But  it  is  said  ("and  this  is  the  great  argument  on  behalf  of  the  in- 
Hurance  co;upanics)  that  the  award  was  founded  upon  a  certain  cla.ss 
of  claims,  that  the  amount  of  it  was  a.scertained  by  referring  to  a  cer- 
t.-iin  schedule  setting  forth  the  claims  cliiefly  of  insurance  companies, 
uiid  that  tiic  Government  of  the  United  States  obtained  this  money 
by  making  use  of  the  evidence  furnished  by  the  insurance  companies, 
and  that  now  it  is  bound  to  pay  it  over  to  them.  * 

Sir,  there  miglit  be  Hoiiiftbiiig  in  Miis  argument  if  this  statement 


10 

rcabracecl  all  the  facts  in  the  case;  but  it  docs  not.  The  gentlemen 
who  make  these  arguments  overlook  the  fact  that  wlien  this  Govern- 
ment submitted  to  the  decision  of  the  tribunal  as  to  the  particular 
vessels  concerning  whose  acts  Great  Britain  was  to  be  held  responsi- 
ble— •wh^n  this  Government  submitted  to  that  decision  it  did  so  giv- 
ing notice  to  the  tribunal,  giving  notice  to  Great  Britain,  that  it  re- 
served the  right  to  dispose  of  this  fund  in  its  ovrn  discretion  in  distrib- 
uting it  among  its  own  citizens.  Therefore  the  proposition  that  this 
Government  recovered  this  amoujit  of  money  upon  the  showing  made 
at  Geneva  by  the  insurance  companies,  even  if  it  were  true,  would 
have  no  controlling  influence  in  the  decision  of  this  question.  But 
it  does  not  appear  to  be  true. 

It  is  impossible  to  say  upon  what  data,  upon  what  evidence,  the 
arbitrators  arrived  at  the  sum  of  $15,500,000.  Various  claims  had 
been  presented  ;  such  evidence  as  the  United  States  could  command 
was  laid  before  the  tribunal.  But  the  Government  expressly  declared 
that  it  was  not  to  be  bound  by  anything  that  was  presented.  The 
tribunal  ascertained  the  amount  from  the  best  evidence  it  could  get. 
But,  like  the  proceedings  in  a  jury-room,  it  is  impossible  to  say  what 
controlled  or  influenced  the  decision  of  the  arbitrators  in  fixing  the 
sum. 

Upon  that  subject  perhaps  no  man  is  better  informed  than  Mr.  J. 
Bancroft  Davis,  who  was  the  agent  of  the  United  States  at  Geneva. 
I  ask  to  read  to  the  House  what  he  says  about  it.    Mr.  Davis  says  this : 

It  is  evident  that  the  arbitrators,  to  facilitate  the  investigations,  wished  to  have 
before  them  a  a>niparative  summary  of  that  which  the  United  States  claim  and  the 
ciiticism  of  these  claims  by  England,  criticism  bearing  upon  the  items  as  well  as 
upon  the  classes  of  claims.  These  tables,  made  by  the  two  parties  in  no  Va,y  bind 
the  arbitrators.  They  are  simply  indications  suited  to  guide  the  tribunal  across 
the  mass  of  figures  and  details  contained  in  the  cases  and  the  evidences  of  the  two 
governments. 

Again,  he  says  : 

It  does  not  appear  in  the  piotocols  how  the  arbitrators  anived  at  this  amount.  I 
am  informed  that  it  was  reached  by  mutual  concessions.  The  neutral  arbitrators 
luid  Mr.  Adams,  fiom  the  beginning  of  the  proceedings,  were  convinced  of  the 
policy  of  awarding  a  sum  in  gross.  *  *  *  We  therefore  devoted  our  energies 
toward  securing  such  a  sum  as  should  be  practically  an  indemnity  to  the  sufferers. 
Whether  we  have  or  have  not  been  successful  can  be  determined  only  by  the  final 
division  of  the  sum. 

I  have  said,  and  I  based  the  statement  upon  what  appears  in  the 
record,  that  our  counsel  at  Geneva  obeyed  the  instructions  which 
were  given  them  by  the  Govei'ument.  I  think  I  have  shown  that  they 
did  so.  But  I  have  a  little  further  testimony  upon  that  subject ;  it 
is  the  opinion  of  one  of  the  counsel  who  represented  the  Govern- 
ment before  that  tribunal ;  I  mean  Hon.  Caleb  Gushing. 

Mr.  Gushing,  counsel  for  our  Government,  in  his  book  upon  the 
Alabama  claims,  says: 

'J'he  awaid  is  to  the  United  States,  in  conformity  with  the  letter  of  the  treaty, 
which  has  for  its  well-defined  object  to  adjust  and  remove  complaints  and  claims 
on  the  part  of  the  United  States. 

But  tlie  history  of  the  treaty  and  of  the  arbitration  shows  that  the  United  States 
recovered  not  for  the  benefit  of  the  American  Government  as  such,  but  of  such  in- 
dividual citizens  of  the  United  States  as  shall  appear  to  have  sufiered  loss  by  the 
iicts  or  neglects  of  the  British  government.  It  is,  however,  not  a  special  trust  le- 
gally atftcted  by  any  particular  claimant  or  claims,  but  a  general  fund,  to  be  admin- 
istered l)j-  the  t'nitea  States  in  good  faith,  in  conformity  with  their  own  conception 
of  justice  and  equity  within  the  range  of  the  award.  Nor  does  the  tribunal  define 
formally  what  claims  shall  be  satisfied  otherwise  than  in  the  comprehensive  terms 
of  the  award,  which  declares  that  the  sum  awarded  is  the  indemnity  to  be  paid  by 
Great  Brftain  to  the  United  States  for  the  s.atisfactioii  of  all  claims  referred  to  the 
consideration  uf  the  tribunal. 


11 

He  further  says : 

The  arbitrators,  be  it  observed,  do  cot  say  that  it  is  for  the  satisJ'actioD  of  cer- 
taui  specific  claims  among  those  referred  to  the  consideration  of  the  tribunal,  but 
of  all  the  claims  so  referred  conformably  to  the  provisions  of  the  treaty. 

And  again,  and  more  especially  upon  the  point  "which  I  am  discuss- 
ing, as  to  whether  the  counsel  of  the  United  States  carried  out  the 
instructions  given  to  them  by  this  Government,  Mr.  Gushing  in  a 
more  recent  opinion  says : 

The  counsel  of  the  United  States  were  specially  insti'ucted  by  the  Goveiiinient 
to  avoid  committing  the  United  States  to  any  tlieoiy  of  distiibution  as  regaids 
either  claims  or  claimants,  and  especially  not  to  commit  the  United  States  in  the 
mattei-  of  the  claims  of  insurers. 

5.  The  counsel  of  the  United  States  obeyed  the  instmctions  given  them,  and  did 
not  commit  the  United  States  to  any  theory  of  distribution  whatever,  either  by  way 
of  inclusion  or  of  exclusion,  but  left  that  question  to  be  determined  by  the  wisdom 
and  discretion  of  Congress. 

The  United  States  at  Geneva  laid  before  the  tribunal  all  the  claims  of  citizens  of 
the  United  States  which  had  been  presented  to  the  Government,  without  vouching 
for  the  validity  of  any  of  them ;  but  insisted  that  the  United  States  were  not  bound 
by  the  printed  schedules,  but  only  by  the  description  of  the  treaty — "all  the  said 
cfaims,  growing  out  of  acts  committed  by  the  aforesaid  vessels,  and  generally 
known  as  the  Alabama  claims."     (ProtocorxXVI.) 

So  it  appears,  not  only  from  the  language  employed  in  the  treaty  and 
award  and  from  the  whole  coiirse  of  the  proceedings  at  Geneva  but  also 
from  the  statement  of  one  of  the  counsel  of  the  United  States,  that 
they  did  obey  instructions,  and  did  not  commit  this  Government  as 
to  the  distribution  of  this  fund. 

But  this  very  view  of  the  subject  has  been  taken  by  British  statesmen 
themselves,  and  I  wish  now  to  call  the  attention  of  the  House  to  that. 
.Certain  citizens  of  England  who  had  lost  by  the  Alabama,  claimed  in- 
demnity from  their  own  government,  insistingthat,  inasmuch  as  Great 
Britain  had  consented  to  indemnify  the  citizens  of  another  nation 
(the  United  States)  for  losses  occasioned  by  those  cruisers,  that  gov- 
ernment was  bound  to  indemnify  its  own  citizens  in  like  manner. 
And  a  claim  of  this  character  was  made  in  the  British  Parliament. 
But  it  was  not  considered  as  valid.  The  reason  given  was  that  the 
government  of  Great  Britain  had  not  indemnified  any  citizen  of  the 
United  States ;  that  the  claim  of  no  citizen  of  the  United  States  hatl 
ever  been  considered  or  allowed  by  the  Geneva  tribunal  or  paid  by 
the  British  government  under  that  award.  During  the  debate  in  the 
British  Parliament  Mi'.  Anderson  asked — 

If  we  wore  obliged  to  pay  for  damage  sustained  by  the  Americans,  by  reason  of 
the  conduct  of  the  Alabajiia.  why  were  we  not  equally  bound  top.iy  for  the  damage 
BUHtainod  by  our  own  subjects  by  reason  of  the  acts  of  that  vessel  ( 

Mr.  Gladstone,  then  prime  minister,  .said  in  reply: 

It  appears  to  be  imidied  that  the  government  submitted  the  claims  of  certain 
[iiTHons  not  subjects  of  Her  Majesty  to  arbitration. 

This  is  alfogftlier  a  mistake.  No  claims  of  individuals  have  been  submitted  to 
arbitration  in  relation  to  the  Alabama. 

What  was  subniitted  to  aibitration  was  entirely  a  question  between  the  two  gov- 
I  rimients. 

The  report  of  this  <lebate  is  to  bo  found  in  the  London  Tinies  of  May 
'xi7,  IK?:?,  and  is  (nioted  in  a  volume  of  the  Foreign  Jlelations  of  the 
United  States,  part  1,  ])age  :?71. 

So  that  the  statesmen  of  Great  Britain  tliemselves,  who  must  be 
prenutiied  to  liave  bfen  familiar  with  the  proceedings  of  the  tribunal, 
tr)  ha\  c  inidcTstood  the  views  and  purposes  of  the  two  governiiieiits 
conciTued  and  of  the  tribiiiiiii  itKcli',  have  declared  upon  this  subject 


12 

that  the  tribuual  had  nothing  to  do  with  the  chiiins  of  individuals, 
and  that  this  was  simply  a  question  between  the  two  govern ments. 

Now,  Mr.  Speaker,  I  would  like  to  call  the  attention  of  the  House 
to  some  decisions  upon  this  qnestion  which  have  been  rendered  by 
the  court  of  commissioners  of  Alal>ama  claims.  The  very  qnestion 
now  under  consideration  has  been  repeatedly  Ijrought  to  the  atten- 
tion of  that  court,  and  has  legitimately  and  properly  arisen  in  the 
discharge  of  its  duties  under  the  law ;  for  a  treaty,  Mr.  Speaker,  in 
the  supreme  law  of  this  land.  And  if  this  treaty  makes  this  a  trust 
fund  and  vests  the  title  to  the  fund  in  certain  si)ecific  claimants,  it  in 
not  within  the  power  of  Congress  to  divert  the  fund  from  the  claim- 
ants who  are  entitled  to  it  under  and  by  virtue  of  the  treaty  itself. 
This  Question,  I  say,  has  been  repeatedly  made  before  the  court  of 
commissioners  of  Alabama  claims  ;  a  tribunal,  I  undertake  to  say,  en- 
titled to  great  respect  for  its  ability,  learning,  and  high  character. 

Mr.  HURD.  Will  the  gentleman  allow  me  to  ask  him  whether,  from 
the  very  nature  of  its  constitution,  that  court  is  not  one  of  limited 
jurisdiction  ? 

Mr.  McCKARV.  Undoubtedly  it  is  a  court  of  limited  jurisdiction. 
What  I  say  is  that  this  question  arises  properly  and  necessarily  in  the 
administration  of  the  duties  devolved  upon  that  court  by  the  law 
under  which  it  is  created. 

Mr.  LORD.  Is  not  the  jurisdiction  of  the  court  limited  only  as  to 
the  subject-matter  of  the  claim  i?  Does  not  the  statute  confer  ux)on  it 
the  broadest  power  in  other  respects  ? 

Mr.  McCRARY.     Unquestionably  it  is  limited  only  as  to  the  sub- 
ject-matter over  which  it  shall  have  jurisdiction ;  but  there  is  no  limit- 
ation upon  that  court  which  prevents  it  from  deciding  a  constitu- 
tional question  which  may  arise  in  the  course  of  au  adjudication  . 
properly  brought  before  it. 

Now,  in  the  case  of  Hubbell  vs.  The  United  States  that  court  uses 
this  language : 

Notbinjc  can  be  found  in  those  proceedings  (at  Geneva)  to  limit  or  control  good 
faith  on  tne  part  of  our  Government  in  making  such  allowance  to  claimants  before 
us,  as  in  their  judgment  and  di.scretiou  Congress  might  think  proper.  In  fact,  the 
very  able  committee,  to  whom  the  British  board  of  trade  referred  the  investigation 
of  the  points  at  issue,  say,  in  their  report :  '■  The  proper  compensation  for  the  losses 
occasioned  by  the  cruisers  is  the  question  we  have  to  examine;  but  with  the  mode 
of  distributing  that  among  the  various  claimants  the  American  Govenimeut  alone 
:i3  concerned.'" 

[Here  the  hammer  fell.] 

Mr.  LORD.  I  ask  that  the  gentleman  be  allowed  to  continue ;  but 
I  had  agreed  that  at  this  point  of  time  I  would  yield  au  hour  to  the 
gentleman  from  Kentucky  [Mr.  Jones]  on  another  matter.  Doestlie 
gentleman  from  Iowa  [Mr.  McCrary]  prefer  to  continue  his  remarks 
now  or  at  some  other  time  1 

Mr.  McCRARY.  I  shall  conclude  in  a  very  few  minutes,  and  I  pre- 
fer to  go  on  now. 

The  SPEAKER  jjro  tempore.  If  there  ))e  no  objection  the  gentleman 
will  proceed. 

There  was  no  objection. 

Mr.  McCRARY.    Further  on  in  this  same  opinion  this  court  says: 

The  Government  of  the  United  States  accepted  the  sum  awarded  iu  full  settle- 
ment of  all  the  claims  comprehended  in  the  terms  of  tlio  treaty,  and  soon  after- 
ward Congress  passed  the  act  providing  for  its  distribution  among  the  claimants, 
which  is  to  be  our  cliief  guide  in  the  actual  work  of  distribution.  It  is  clear  that 
the  Government  had  the  right  to  prescribe  the  terms  on  which  claimants  should 
_present  their  claims.  They  were  not  strong  enough  to  compel  payment  of  the 
juoney  by  Great  Britain,  and  when  this  Government  obtained  it  the  claimants  liad 


13 

no  l('f:al  rights  to  it  except  that  which  this  Goverimieut,  by  its  own  acts,  chose  ta 
;ic('oril.  They  must,  therefore,  take  their  respective  shares  of  it  subject  to  all  the 
conditions  wfiich  the  Government  has  thought  fit  to  appoint,  or  not  take  them  at 
all. 

I  might  read  from  uiimerons  opinions  of  that  court ;  but  I  will  con- 
tent myself  with  reading  only  from  one  more,  which  is  a  very  recent 
case.  I  refer  to  the  case  of  Ehind  v-s.  The  United  States,  iu  which  the 
court  say : 

The  award  was  made  in  favor  of  the  Governraeut  and  not  in  favor  of  tl^  claim- 
ants. The  Government  thus  vindicated  the  national  honor ;  but  it  did  not  assume 
to  pay  any  particular  «!lass  of  claimants,  nor  any  particular  claim.  Having  ob- 
lainea  the  money  by  its  own  act  and  at  its  own  cost,  it  had  the  right  to  prescribe 
the  t-erms  on  wliich  the  distribution  should  be  made.  It  certainly  liad  the  power 
to  exclude  certain  claimants  and  to  include  others  less  meritorious.  In  the  act 
now  before  us,  claimants  are  excluded  who  believe  themselves  justly  entitled  to  a 
part  of  the  fimd  ;  but  they  have  no  power  to  assert  their  right  to  it.  Under  the 
poweis  coiumitred  to  us  we  have  in  some  instances  rejected  altogether  claims  pre- 
Houted  at  Geneva,  and  in  many  more  instances  we  have  largely  reduced  such  claims 
in  amount. 

So  I  think,  Mr.  Speaker,  I  have  shown  that  by  the  treaty  itself,. 
by  the  proceedings  at  Geneva,  by  the  terms  of  the  award,  and  by  the 
decisions  of  the  onlj'  conrt  to  which  these  questions  have  been  sub- 
mitted, it  has  been  settled  tJiat  this  fund  was  paid  to  tlie  United 
States  to  be  distributed  among  the  sufferers  by  reason  of  England's 
wrong  in  its  own  discretion. 

It  is  claimed  that  the  United  States  acted  in  ttiat  arbitration  as 
the  attorney  or  as  the  agent  of  these  claimants.  I  deny  it.  There  is 
no  evidence  to  support  it.  All  tl:e  evidence  contradicts  the  proposi- 
tion. But  sir,  if  the  Government  of  the  United  States  did  assume 
the  position  of  an  agent  or  an  attorney  it  was  alike  the  agent  and  rep- 
resentative of  all  the  claimants  named  and  referred  to  in  the  treaty 
of  Washington.  And  if  gentlemen  could  sustain  the  proposition  that 
this  Government  was  there  in  the  capacity  of  an  agent,  not  to  settle 
groat  questions  of  international  law,  but  to  collect  certain  claims 
which  citizens  of  the  United  States  had  against  Great  Britain  by 
reason  of  her  wrong-doing,  they  would  o!ily  succeed  in  showing,  ac- 
cording to  their  theory  of  what  our  Government  did,  that  never  did 
an  agent  and  never  did  an  attorney  so  betray  a  trust. 

Tliey  would  liave  you  believe,  Mr.  .Speaker,  that  this  Government 
came  before  that  great  tribunal  as  the  representative  and  agent  of 
all  tlieso  claimants,  and  so  conducted  its  agency,  so  represented  its 
principals  or  its  clients,  as  to  give  the  greater  part  of  this  whole  award 
of  $2(»,(M)(i,0ii0  to  men  w!i(>  do  not  in  honesty  and  good  faitli  deserve 
to  receive  a  single  dollar,  and  so  as  to  deprive  others  who  have  lost 
their  all  by  Enghuid's  wrong  of  the  right  to  recover  a  single  cent. 

A  citizen  of  the  United  States  was  tlio  owner  of  a  vessel  upon  the 
liigh  seas.  With  true  patriotism  and  with  true  courage  he  took  his 
own  risk.  He  unfurled  the  Stars  and  Stripes  over  his  ves.sel,  when 
l)y  showinj'  foreign  colors  he  wouhl  have  been  safe.  He  had  no  in- 
Hurancn.  A  rebel  cruiser  let  loose  from  a  port  iu  Great  Britain  runs 
down  his  vessel  and  it  is  destroye<l.  His  all  is  gone  and  ho  is  enti- 
tled from  no  source,  if  not  from  this  fund,  to  recover  a  single  doll.'ir 
of  indemnity.  This  patriotic  and  loyal  citizen  places  his  claim  in  tlio 
liands  of  his  Government,  and  his  Government  goes  before  this  great 
trilmiial  to  assort  his  riglits,  insisting  it  was  England's  wrong  wliich 
resulted  in  liis  ruin.  An  insurance  company  thatma<lc  its  million  of 
dollars  out  of  war  premiums,  having  in  the  course  of  its  business  to 
pay  the  loss  on  another  vessel,  ])laces  its  claim,  too,  in  the  liands  of 
tins  Government,  and  asks  tlse  Government  to  be   its  represcututive 


14 

before  this  liigli  tribimal  aud  to  insist  upon  its  rights.  Tlie  Govern- 
ment, according  to  gentlemen,  accepted  the  position  of  agent  or 
of  attorney  for  these  two  claimants.  It  went  before  that  high  court. 
Before  going,  however,  it  pledged  itself  to  these  claimants,  and  to  its 
citizens,  and  to  the  world,  that  it  would  not  imder  any  circumstances 
80  tie  its  hands  as  to  be  Unable  to  distribute  fairly  and  justly  auy 
sum  iu  gross  which  might  be  paid  into  its  Treasury  as  the  result  of 
its  negotiations.  Yet,  after  all  that,  are  we  to  be  told  that  this  Gov- 
ernment, in  its  capacity  as  attorney  or  agent,  has  gone  before  that 
tribunal  and  has  violated  its  promise  to  the  people  and  to  the  claim- 
ants, and  has  so  conducted  that  negotiation  that  the  citizen  who  lost 
his  all  can  recover  nothing  from  this  fund,  aud  the  insurance  com- 
pany that  made  its  million  shall  carry  off  its  whole  claim  ?  Sir,  you 
disgrace  the  nation  when  you  say  it  acted  as  attorney  iu  this  case, 
and  you  disgrace  it  more  when  you  undertake  to  show  to  Con- 
gress and  the  American  people  that  when  acting  as  attorney  it  con- 
ducted itself  in  this  way.  Xo  lawyer  could  retain  his  place  at  the 
bar  in  any  respectable  court  on  the  face  of  the  earth  who  should  so 
betray  his  client. 


OENE^^^    Js^^VJ^TlT). 


RO^.  GEORGE  A.  JENKS, 


OF  PENNSYLVANIA, 


HOUSE   OF  REPRESENTATIVES, 


JUNE   28,    1816. 


WASHINGTON: 

GOVEliNMENT    PRINTING    OFFICE. 

1876. 


it-  must  be  bocaiise  they  have  a  legal  right;  because  as  the  law  now 
stands  they  are  re-imbnrsed  for  all  that  they  have  lost  in  excess  of 
that  which  they  have  received  in  war  premiums.  Now,  if  they  are 
entitled  to  anything  more  it  must  be  because  they  have  a  legal  right. 
And  if  they  have  legal  right  to  any  they  must  have  legal  right  to  all. 
So  that  the  majority  report  seems  to  me  to  be  a  logical  solecism  con- 
tradictory in  itself;  apparently  acknowledging  the  title  of  the  insur- 
ance companies  and  yet  repudiating  it.  This  amendment,  therefore, 
is  necessary  to  give  logical  consistency  to  the  majority  report  and  to 
do  justice  to  those  wlio  have  actually  lost. 

During  tlie  discussion  of  this  question  some  of  those  who  think  the 
insurance  companies  are  entitled  to  the  whole  fund  have  seen  proper 
and  thought  it  necessary  to  introduce  authority  to  establish  the  prin- 
ciple that  a  nation  should  be  just.  I  apprehend -this  was  entirely 
unnecessary.  To  be  just  is  a  nation's  duty  and  her  highest  glory. 
But  we  must  not  forget  that  before  the  throne  of  justice  truth  is  the 
sole  ministering  spirit ;  and  we  can  approach  that  throne  only  through 
this  medium.  We  must  stand  ujDon  truth,  and  appropriate  truth,  or 
justice  cannot  be  done. 

There  has  also  been  a  series  of  arguments  introduced  which  to 
me  seem  to  be  entirely  iiTclevant  and  improper.  Something  like  this 
proposition  has  been  stated  :  The  United  States  have  recovered  this 
fund  from  Great  Britain.  Now,  if  she,  in  disclosing  of  it,  does  not 
give  it  to  A  or  to  B,  she  ought  to  return  it  to  Great  Britain.  This  is 
a  thorough  von  mquUnr.  If  a  man  obtains  money  honestly,  how  he 
disposes  of  that  money  can  in  no  event  affect  the  justice  or  injustice 
of  the  mode  by  which  he  obtained  it.  So  that  whether  we  give  this 
money  to  the  insurance  companies  or  not,  if  we  obtained  it  in  honest 
good  faith  from  Great  Britain  and  perpetrated  no  fraud  upon  her,  it 
makes  no  difference  to  whom  we  distribute  it.  This,  therefore,  that 
we  see  in  the  papers,  that  we  wrong  Great  Britain  if  we  give  this  to 
others  than  the  insurance  companies,  does  not  follow  at  all.  The  fact 
is,  as  regards  Great  Britain,  this  money  was  obtained  for  certain  ves- 
sels destroyed  in  consequence  of  her  neglect  of  duty  as  a  neutral 
power  in  the  civil  war  transpiring  between  sections  of  the  United 
States.  The  individual  title  of  no  individual  was  considered  in  any 
way. 

But  I  would  say  here  that  if  in  any  event  it  should  turn  out,  or  if 
evidence  should  be  adduced  that  we  have  in  any  manner  wronged- 
Great  Britain,  I  would  say  pay  her  her  money  back.  It  is  our  duty 
to  be  perfectly  just.  Justice  is  a  more  comprehensive  term  than 
either  national  honor  or  national  glory.  The  honor  may  be  a  mere 
bubble.  The  glory  may  be  tainted  with  crime.  Biit  justice  is  one  of 
the  immaculate  attrilnites  of  the  Eternal,  and  is  higher  and  broader 
than  either  of  the  other  terms.  I  would  be  just  to  Great  Britain.  I 
would  be  just  to  every  jiei'son  who  2>resents  a  claim  here ;  but  I  would 
not  accept  the  principle  that  when  we  have  obtained  this  money 
justly,  if  we  do  not  give  it  to  A,  B,  or  C  we  should  give  it  back  to 
Great  Britain.  That  question  in  no  way  arises  liere,  but  is  intro- 
duced into  the  discussion  in  consequence  only  of  that  confusion  which 
often  arises  from  attempting  to  consider  two  things  at  once  whicht 
are  in  no  way  relevant  to  each  other. 

In  approaching  the  throne  of  justice  it  is  also  necessary  to  make 
this  distinction,  that  all  truth  is  not  ecjually  important.  If  I  should 
state  as  a  legal  truth  that  "if  a  jjcrsou  of  sound  memory  and  discre- 
tion taketh  the  life  of  a  reasonable  being,  and  in  the  peace  of  the 
Commonwealth,  with  malice  aforethought,  express  or  implied,  he  is 
a  nuirderer."    That  is  a  truth,  an  unquestionable  legal  truth,  which  we? 


.-accept;  but  it  would  be  entii-ely  irrelevant  here.  Or  if  I  should  state 
as  a  fact  the  accurate  dimensions  of  this  Hall,  that  wouhl  be  a  truth 
but  an  irrelevant  truth.  .So  that  we  must  not  only  approach  the 
august  throne  of  justice  through  the  medium  of  truth,  but  we  must 
see  that  that  truth  is  relevant," relevant  in  fact  and  relevant  in  law. 
Many  considerations  have  been  introduced  here  that  seem  to  me  to 
be  entirely  unimportant  in  the  discussion  of  this  case. 

The  first  proposition  I  will  endeavor  to  establish  will  be  that  this 
award  was  obtained  upon  the  paramount  title  of  the  nation' and  not 
upon  any  indivi<\ual  title  whatever;  that  no  individual  right  was 
considered  l)y  the  arbitrators,  nor  was  any  individual  right  the  basis 
upon  which  this  recovery  was  had.  And  in  reference  to  this,  in  order 
to  guard  against  coufusiim,  it  may  be  well  to  call  to  the  attention  of 
the  House  the  fact  that  there  are  at  the  same  time  to  all  the  aggre- 
gate wealth  of  a  nation  the  paramount  title  of  the  nation  and  the 
municipal  title  of  the  individual.  They  are  not  necessarily  con- 
nected at  all.  The  destruction  of  the  one  does  not  necessarily  de- 
stroy the  other  at  all.  The  transfer  of  one  does  not  necessarily 
transfer  the  other  at  all.  They  are  distinct  and  for  distinct  and  dif- 
ferent puri>oses.  The  title  which  pertains  to  the  nation,  which  is  a 
sovereign  as  to  foreign  nations  and  to  the  individual,  are  as  distinct 
as  if  the  two  titles  existed  in  distinct  individuals,  each  for  its  own 
appropriate  purjiose. 

\Vo  may  illustrate  this  by  the  fact  that  a  nation  may  sell  its  para- 
mount title  to  another  in'such  case.  Those  who  hold  a  municipal 
title  are  not  thereby  divested  of  their  individual  rights  or  titles,  be- 
cause the  municipal  titlQ  was  not  destroyed  by  the  sale.  But  there 
may  be  a  money  consideration  paid  for  the  title  of  a  nation.  Audit 
may  be  transferred  as  fully  as  an  individual  can  transfer  his  own. 

We  have  illustrations  of  this  in  the  history  of  our  own  country,  in 
the  cases  of  the  purchase  of  Louisiana,  the  purchase  of  New  Mexico, 
and  the  purchase  of  Alaska.  Those  inhabitants  who,  i)rior  to  those 
purchases,  owned  property  within  the  purchased  territory  did  not 
have  their  title  alteeted  at  all.  but  the  paramount  title  of  France  in 
one  instance,  of  Mexico  in  another,  and  of  Russia  in  the  third  was 
■transfejTcd  to  our  country.  Therefore  we  want  to  remember  that  the 
municij>al  title  of  the  individual  and  the  paramount  title  of  the  sov- 
reign  are  not  the  same  at  all. 

Then,  if  they  are  not  the  same,  on  what  title  was  this  recovery  had 
a-s  to  Great  Britain  '!  And  before  we  progress  further  in  the  consid- 
eration of  that  i)oint  it  may  not  bi-  irrelevant  to  suggest  what  is  title. 
"  It  is  the  means  by  wliicii  the  owner  cometh  to  the  just  possession  of 
his  ])roperty."  WJierever  there  is  no  means  there  is  no  tith-.  Some- 
times the  paramount  title  of  the  sovereign  may  be  the  means  of  re- 
covering tlie  inferior  or  munieipal  title  of  the  litizcu.  Where  I  s[)eak 
of  the  iiaiamoimt  title  of  the  sovereign  and  the  innnieii)al  title  of  the 
citizen  I  do  not  wish  to  be  understood  as  derogating  from  either,  be- 
cause they  do  not  collide;  there  is  no  contravention  of  ri;;lit  Ix'.tween 
them  ;  tii(;y  are  wvy  often  co-exisf  ing,  Imt  tliey  may  be  sei>arate. 

Another  illustration  of  thisixiiut:  In  a  time  of  war,  if  a  citizen  sell 
liis  ]»roperty  to  the  enemy  that  clearly  <livests  the  title  of  tlie  citizen 
to  th;it  pioperty  ;  bnt  thl-  i)ai:imonnt  tith;  of  the  sovereign  is  not  di- 
vested theicliy,  and  the  sovereign  may  reeo\er  it  b;.ek.  'J'he.  citizen 
lias  destroyed  his  title;  l)iit  the  natifui's  titli-  stainls  intact  as  before, 
and  it  is  as  miicli  her  iud])eity  aft<*r  the  sale  as  before.  'I'herefore 
we  must  liear  in  mind  that  the  two  titles  are  not  ucccssarilyco-exist- 
<mt,  altliough  thi»y  usually  <lo  exist  together. 

Then,  there  being  two  titles,  on  wliat  title  was  (liis  n-coveiy  li;i<l  ? 


6 

I  maintain  that  it  was  had  solely  and  exclusively  on  the  paramounb 
title  of  the  United  States,  which,  as  to  all  foreign  nations,  is  sover- 
eign, fully  endowed  in  all  respects.  The  first  fact  to  which  I  wish 
to  call  attention  is  the  very  statement  of  this  case.  This  case  stood 
"  United  States  vs.  Great  Britain."  The  award  was  in  favor  of  the 
United  States  and  against  Great  Britain.  Now,  prima  facie,  the  title 
recovered  upon  must  have  been  the  title  of  the  United  States.  There- 
fore the  award  itself  would  be  at  first  prima  facie  evidence  that  the- 
title  on  which  that  recovery  was  had  was  in  the  United  States. 

Then,  unless  sufScieut  evidence  is  adduced  to  the  contrary,  the- 
award  itself  would  settle  it  in  the  mind  of  any  lawyer  that  it  was  on 
the  paramount  title  of  the  United  States  alone  that  it  was  recovered. 
This  is  capable  of  being  rebutted  by  evidence ;  because,  as  I  have 
said  before,  the  title  of  the  sovereign  and  the  title  of  the  citizen  are 
not  antagonistic  or  adverse  at  all.  But  prima  facie  I  say  that  the 
very  ajvard  itself  is  evidence  that  it  was  recovered  on  the  title  of  the- 
United  States. 

The  second  fact  to  which  I  shall  call  the  attention  of  the  House  in 
reference  to  the  title  is  that  this  award  was  had  on  three  certain 
rules  established  by  the  Geneva  tribunal.  Those  rules  were  with 
reference  to  the  duty  of  a  neutral  nation  in  time  of  war.  Now,  there 
is  no  duty  that  one  nation  owes  to  the  citizen  of  another  as  such.  If 
war  exists  between  two  nations,  and  another  nation  recognizes  the 
belligerent  state  of  those  two  nations,  it  owes  neutral  duties  to  those 
nations.  But  the  international  duty  of  neutrality  exists  only  between 
nations,  and  not  between  a  nation  and  any  citizen  of  another,  inde- 
l^endent  of  his  sovereign. 

Now,  the  very  ground  of  the  recovery  of  this  award  was  that  Great 
Britain  had  violated  her  duty  as  a  neutral.  Whatever  was  introduced 
before  that  tribunal  for  the  purpose  of  establishing  the  amount  to  be 
recovered  was  merely  evidence  of  the  amount  of  damages,  and  was 
not  any  ground  of  recovery.  Jnst  as  in  the  case  of  an  action  of  cov- 
enant being  brought  on  a  contract  between  two  paj'ties,.the  contract 
being  one  to  build  a  house.  You  might  introduce  evidence  of  what 
another  man's  house  cost  to  test  the  amount  of  damages  resulting 
from  the  failure  to  carry  out  the  contract  to  build.  That  would  give 
no  title  to  the  house  the  cost  of  which  had  been  given  in  evidence,  aS- 
it  was  only  a  means  of  finding  out  the  amount  of  damages  done  on  the 
breach  of  contract ;  or,  as  we  would  say  in  this  case,  on  the  breach  of 
national  relations  between  the  United  States  and  Great  Britain.  The 
ground  of  recovery  before  the  Geneva  tribunal  was  a  breach  of  duty, 
which  conduced  to  the  destruction  of  property  over  which  the  United 
States  had  a  paramount  title. 

If  there  had  not  been  a  single  vessel  destroyed,  the  United  States 
could  have  sustained  its  ground  of  action,  but  the  amount  of  dam- 
ages would  not  have  been  probably  so  great  as  that  which  was  award- 
ed. The  three  rules  on  which  this  award  was  founded  show  that  the 
ground  of  recovery  was  the  breach  of  national  duty,  Avhich  no  nation 
ever  owes  to  the  individual  citizen  of  another  nation  as  a  citizen.  sW 
The  third  fact  is  that  the  court  was  international.  This  court 
could  not  pass  upon  individual  titles.  No  nation  would  appear  before 
an  international  tribunal  to  contest  with  a  citizen  concerning  any 
right  that  he  might  have.  The  character  of  the  court  itself  indicates 
that  this  was  a  contest  on  the  paramount  title  of  the  United  States^. 
and  not  upon  any  individual  title.  And  thes'e  insurance  companies, 
or  any  person  else  apiieariug  there  and  attempting  to  establish  their 
title  before  this  tribunal,  would  havebeen  ruled  out  without  a  hearing^ 


as  in  fact  they  vrere  ruled  out.  Every  individual  title  that  was  there 
offered  as  a  title  was  ruled  out. 

But  the  arbitrators  say,  "  "We  settle  this  question  between  nations 
and  on  national  rights,  not  between  individuals  at  all.*' 

The  next  fact  that  we  would  give  in  evidence  is  the  instructions  of 
Lord  Russell  in  reply  to  Mr.  Adams,  which  I  quote  from  a  speech  of 
the  honorable  Senator  from  Ohio  ;  I  have  no  doubt  the  quotation  is 
correct : 

Her  Majesty's  govemmcnt  c.innot  therefore  admit  that  they  are  under  any  obli- 
«ration  ^rhatever  to  make  compensation  to  the  United  States  citizens  on  account  of 
proceedings  of  that  vessel,  (the  Alabama.) 

The  British  government  repudiated  any  obligation  to  make  com- 
pensation to  citizens  of  the  United  States  for  any  injury  done  to  them. 
"  It  must  be  something  else  than  citizen's  title  that  must  be  consid- 
ered here,"  was  what  the  arbitrators  said.  If  the  question  had  been 
one  of  citizen's  title  there  would  never  have  been  any  recovery,  as  I 
shall  demonstrate  as  I  proceed  further  in  my  argument. 

It  is  said  by  some  that  the  individual  title  was  ruled  out  on  account 
of  that  transcendental  maxim  (a  relic  of  the  Dark  Ages)  that  a  sov- 
ereign could  not  condescend  to  contest  with  an  indi%idua].  That  was 
not  the  ground ;  the  ground  was  that  the  individual  had  no  title  which 
cotild  be  presented  there. 

My  next  proposition  will  be  that  there  was  no  municipal  title  to 
any  portion  of  this  property  that  was  destroyed  after  the  moment  of 
captuie.  However,  as  to  this  at  i>resent,  Her  Majesty's  government 
repudiated  making  compensation  to  any  citizen  in  that  award;  that 
is  the  ground  upon  which  England  acted. 

Then  with  reference  to  the  United  States,  we  find  this  fact  also  ap- 
pearing, that  not  only  the  court  itself  before  which  this  trial  was 
]jad,  and  the  British  government,  repudiated  all  individual  title,  but 
the  United  States  did  the  very  same  thing;  for  in  the  communica- 
tion of  instructions  of  Secretary  Fish  to  those  having  this  trial  in 
charge  the  following  passage  occurs : 

The  President  desires  to  have  the  subject  discussed  as  one  between  tlie  two  pov- 
emmeiits,  and  he  iiirects  me  to  ui;;e  upon  you  .>tron^ly  to  secure,  if  possible,  tlie 
award  of  a  sum  in  jaoss.  In  the  discussion  of  this  question,  and  in  the  treatment 
of  the  entire  case,  you  will  be  careful  not  to  commit  tlie  Government  as  to  the  dis- 
■po.sition  of  what  may  be  awarded.  It  is  possible  that  there  n-.ay  be  duplicate 
claim.4  upon  some  of  the  propei-ty  alleged  to  have  been  captured  or  destroved.  as  in 
the  case  of  insurers  and  insured.  The  Government  wislies  to  hold  herself  free  to 
decide  as  to  the  ri^rlitK  of  the  claimants'  insurers  upon  the  termination  of  the  case. 
If  the  value  of  tin-  property  captured  or  destroyed  be  r<'Cordtid  in  tlie  name  of  the 
Government,  the  ilistribution  ot  the  amount  recirrde<l  will  be  made  bj-  this  Govern- 
ment without  committal  as  to  Jh.;  mode  of  distribution. 

Now,  if  it  had  been  on  the  title  of  any  Individual  that  this  recovery 
was  had,  there  must  necessarily  liave  bt-en  a  coniniittal  of  the  Gov- 
ernment, because  the  Government  cannot  violate  ]irivate  right — can- 
not take  the  iimporty  of  one  and  give  it  to  another.  This  jirinciple 
of  law  is  so  well  kjiown  that  if  the  Government  iiad  not  stood  upon 
the  ground  that  sin-  was  recovering  ujxui  her  i)araniouirt  title  that 
which  was  destroyed  by  the  lireach  of  neutral  duties  on  the  part  of 
Great  Britain,  that  coMiniunieation  of  Secretary  Fish  would  never 
have  been  iriade  by  the  United  States  as  it  was. 

Tliese  facts  su()i<  iently  CHtabiish  th.'it  tlie  amount  was  recovered 
ujion  tlie  paramount  title  of  the  United  States,  and  not  upon  any  in- 
dividual title  of  any  citizen  thereof. 

But  it  d'»e8  not  follow  l»ecanse  it  was  recovered  upon  the  title  of 
the  United  States,  that  therefore  the  Governmeiit  may  not  have  re- 


8 

covered  for  tlie  use  of  some  of  Iier  citizeus.  If  auy  of  her  citizeiis 
had  title  to  the  property  destroyed,  after  its  destruction  her  recovery 
on  her  paramount  title  would  necessarily  make  her  a  trustee  for  those 
whose  property  was  destroyed. 

Now,  the  next  inquiry  (and  to  this  I  will  turn  my  attention  more 
particularly)  is,  was  there  auy  individual  title  to  this  property  at  all 
at  the  time  the  award  was  recovered  against  Great  Britain?  If  there 
was,  then  the  individual  who  had  that  municipal  title  is  entitled  to 
his  share  of  this  fund,  and  so  are  his  privies,  the  insui-auce  companies, 
if  there  was  title.  But  if  there  was  not  title,  then  he  has  no  claim 
above  all  the  rest  of  his  fellow-citizens  in  like  circumstances ;  nor 
have  his  privies,  the  insurance  companies.  So  that  the  inquiry  now 
becomes  pertineut,  was  there  any  title  in  existence  at  the  time  of  this 
recovery  except  the  x»aramouut  title  of  the  nation  itself  ?  I  propose 
to  undertake  to  demonstrate  that  there  was  no  other  title. 

The  first  fact  to  which  I  would  call  attention  in  reference  to  this 
point  is  that  there  was  a  civil  war  existing.  This  appears  to  me  to 
be  a  great  ruling  fact  in  the  ease.  It  seems  to  a  great  extent  to  have 
been  passed  over  or  neglected  in  the  discussions  in  the  House.  Yet 
to  me  this  is  the  very  turning  point  in  this  whole  discussion.  There 
was  a  civil  war ;  is  that  a  fact  or  is  it  not  ?  If  you  go  over  to  Arling- 
ton and  see  the  thousands  of  graves  marked  "  unknown  "  and  observe 
the  tens  of  thousands  lying  l)uried  there,  you  will  not  question  for  a 
moment  that  there  was  a  civil  war.  Was  that  civil  war  organized  in 
all  the  forms  of. a  regularly  organized  war f  That  cannot  be  dis- 
puted. Then  the  lirst  fact  which  I  shall  take  as  fixed  is  that"  there 
was  a  civil  war  existing  between  the  Confederate  States  and  the 
United  States. 

But  how  did  England  regai-d  this  question?  England  had  recog- 
nized the  belligerent  rights  of  the  confederacy.  She  had  said  that 
there  was  a  civil  war  existing.  Then  the  fact  is  there  was  a  civil 
war.  England  said  there  was.  The  United  States  also  gave  her  assent 
to  the  same  proposition.  lu  the  case  of  Coolidge  vs.  Guthrie,  17  Law 
Register,  page  24,  the  following  statement  of  the  case  is  made  by 
Judge  Swayue : 

"When  the  transaction  occurred,  the  rebellion  had  risen  to  the  proportions  of  a 
civil  war  and  was  fully  flagrant.  Arkansas  was  enemy's  teiritoiy  and  all  the 
property  there  was  enemy  property.  Cotton  was  an  article  of  foreign  and  domestic 
commerce.  It  was  one  of  the  main  sinews  of  the  power  of  the  insurgents.  They 
relied  upon  it  for  the  purchase  of  arms  and  other  munitions  of  war,  and  chiefly  to 
supply  them  with  financial  means  for  the  prosecution  of  the  strife.  Important 
belligerent  rights  were  conceded  to  them  by  the  Government  of  the  nation.  Their 
soldiers,  when  captured,  were  treated  as  prisoners  of  war.  They  were  exchanged 
and  not  held  for  treason.  Their  vessels  when  captured  were  dealt  with  by  our 
prize  courts.  Their  ports  were  blockaded  and  the  blockades  proclaimed  to  neu- 
tral powers,  and  property  found  on  board  such  vessels  belonging  to  persons  residing 
in  the  rebel  States  was  uniformly  held  to  be  confiscable  as  enemy  property.  Afl 
these  things  were  done  as  if  the  war  had  been  a  public  one  with  a  foreign  power. 

Then  in  the  courts  of  the  United  States  it  seems  the  nation  is  found 
as  accepting  the  fact  that  there  was  a  ciA'il  war  in  existence  between 
the  Confederate  States  and  the  United  States. 

The  same  view  is  corroborated  in  the  case  of  the  Sarah  Starr, 
(Blatchford's  Prize  Ca.se.s,  pages  73  and  74  :) 

The  hostilities  commenced  upon  the  United  States  by  the  seceded  or  Confederate 
States  of  the  South  have  produced  a  state  of  w.'ir  between  the  two  communities, 
as  consequent  to  which  the  United  States  are  authoiized  to  eniplo;f  against  their 
enemies  the  means  of  resistance  and  attack  which  are  justifiable  under  the  law  of 
nations  by  land  or  naval  forces. 

Before  I  go  further  in  reference  to  this  ease,  I  will  state  this  :  The 
claimant  of  this  i>roperty  was  a  nortliern  man,  whose  property  was 


in  tlie  South,  and  it  was  confiscated  under  the  laws  of  war  because  it 
•was  within  the  territory  of  the  theu  enemy. 

Both  of  these  vessels  and  their  cargoes,  so  far  as  olaimed,  were  enemy  property 
■within  the  principles  of  public  law.  "  The  sale  of  the  Sarah  Starr  was  neo^otiate'd 
and  made  by  George  C.  Miini'O,  when  he  was  a  merchant  trading  in  an  enemy  fort, 
to  Gravely,  also  domiciled  and  canj-ing  on  trade  in  such  place.  That  sale  wiw 
unlawful  as  to  Munro.  even  if,  as  he  contends,  he  was  then  a  resident  of  a  loyal 
5tat€,  because  it  was  in  fraud  of  his  obligations  and  duties  toward  his  own  gov- 
ernment. 

* 

So  the  United  States  courts  accepted  the  fact  that  a  state  of  war 
existed. 

In  the  case  of  Phillips  rs.  Hatch,  which  I  will  not  cite  now,  the 
same  fact  is  stated  equally  fully  aud  broadly. 

Then,  as  a  fact,  war  existed,  aud  a.s  a  legal  fact  the  laws  of  war 
were  applied  aud  accepted  by  the  Goverumeut  of  the  United  States. 
Belligerent  rights  had  been  acknowledged  by  Great  Britain.  Then 
as  to  all  parties  who  could  in  any  way  have  an  interest  there  was  a 
.state  of  war  fully  accepted  as  existing  at  the  time  of  this  transaction. 
There  being  civil  war  then  the  same  law  applied  that  applies  between 
foreign  nations.  Under  the  law  of  nations  the  same  rules  or  interna- 
tional principles  which  ruled  as  to  foreign  nations  ruled  as  to  this. 

And  here  I  may  say  that  we  must  bear  in  mind  that  war  has  its 
laws  just  as  well  as  its  arms.  We  may  not  justify  the  one  or  the 
other,  but  it  has  been  found  by  human  experience  that  the  evils  of 
war  are  much  more  mitigated  liy  accepting  the  laws  of  war  than  to 
go  upon  the  principles  which  existed  prior  to  the  recognition  of  inter- 
national law.  So,  whether  we  justify  the  conclusicms  or  condemn 
them,  whatever  those  conclusions  are,  if  they  are  the  conclusions  of 
law  it  is  our  duty  to  accejit  them  as  being  the  lesser  of  two  evils. 

The  ne.xt  proposition  I  purj>ose  to  establish  by  authority  is  that  in 
a  civil  war,  unless  there  be  express  congressional  legislation  to  the 
contrary,  the  same  rules  of  interuatiouul  law  apply  as  though  it  had 
been  a  foreign  war. 

The  first  authority  I  cite  on  this  proposition  is  Yattel's  Law  of  Na- 
tions, section  4'27  : 

But  wlien  a  nation  becomes  divided  into  two  partifS  absolutely  independent,  and 
no  longer  aiknowledging  a  common  superior,  the  State  is  dissolved,  and  the  war 
between  the  two  i);iities  stands  on  tht?  same  ground,  in  every  i-esjiect,  as  a  public 
war  bi-twecn  two  <lilleii-nt  nations.  \Vh<'thi-r  a  rcimblic  bi>  sulit  into  two  factions, 
eacli  maintaiuin'.;  tliat  it  alime  cDnstitiitis  tin-  lioily  of  a  State — oi-  :i  kingdom  be 
divided  between  two  ci>m])i-tit<irs  for  the  riowu—lbi- nation  is  seveii'il  into  two  par- 
tics,  who  will  mutually  term  eacli  otb(-i-  nbels.  Tims  there  exists  in  tlie  stati'  two 
separat-e  bodies,  who  jnetend  t"  absolute  iiidepi  iidi'iicc,  and  between  whom  there 
is  no  judge.  ('  2'.(:i.)  Tln-v  di-ciilr  tlii-ir  (luaiifl  bv  arms,  as  two  clili'c'icnf  nations 
wouhf  do.  The  obligation  to  obsi-i-ve  the  common  laws  of  war  toward  each  otlieris 
tht-refore  absolute.  indii]ieiisably  binding  on  both  parties,  and  the  same  which  the 
law  of  nature  imposes  on  all  nations  in  transactions  between  state  aud  state. 

The  next  authority  I  will  cite  in  pursuance  of  that  is  the  Santis- 
sima  Trinidad,  7  Wlitiaton,  2'^:}.  It  is  <;<)ulirmutory  of  the  fact  that  the 
Uniterl  States  enforced  the  laws  of  war  aud  acted  on  the  law  of  na- 
tions when  Spain  and  her  rebellious  colonies  were  contesting  concern- 
ing the  independence  of  the  latter. 

During  the  exi.Htence  of  tln'  civil  war  between  S]iain  and  liei'  colonies,  and  pro- 
viouH  to  the  a<'knowledgMient  of  the  iniU-nendi'iii.e  of  the  latter  by  the  United 
.'^tatcH,  the  i'o|nnie«  wt-n-  deemed  by  tm  bulligerent  nations,  and  entitled,  ho  far  a.** 
concerns  us.  to  all  the  sovereign  rights  of  war  against  tliiiir  eiu'iny. 

So  that  if  a  civil  war  is  existing  as  a  fact,  unle8.s  tln're  be  soiue  con- 
gressional legiHlatioi)  to  cliange  the  law  in  reference  to  it,  the  law  of 
n.itions  applies  to  and  rules  the  cas<.'. 


10 

We  -will  also  cite  the  case  of  Phillips  vs.  Hatch,  1  Dillon  s  Circuit 
Court  Eeports,  576,  ou  this  same  priuciple: 

"Were  the  rules  and  doctrines  of  international  law  at  all  to  apply  to  this  conflict, 
or  were  the  questions  arisiiif;  out  of  it  to  be  wholly  detemiiuett  by  the  municipal 
law  ?  This  generjil  question  first  came  before  the  Supreme  Court  in'the  Prize  cases, 
2  Black.  C35,  18fi2.  It  has  since  been  frequently  befoie  that  tribunal.  (See  The 
Venice,  t!  Wallace,  258 ;  Mrs.  Alexander's  Cotton,  ibid.,  404:  The  Hampton,  ,5  "Wal- 
lace, 372;  "William  Bagley,  ibid.,  377;  The  Ouachita  Cotton,  6  ibid.,  521;  Hanger 
vs.  Abbott,  ibid.,  532;  Cappell  vs.  Hall,  7  ibid.,  542;  McKee  vs.  TJuited  States,  8 
ibid.,  103;  the  Grapeshot,  9  ibid.,  129.) 

Tliese  cases  all  apply  or  declare  to  he  applicahle  to  the  rebellion 
the  general  doctrines  of  public  law  which  govern  in  wars  between 
intlependent  states. 

So  that  authorities  in  international  law  and  our  highest  court 
have  said  that  the  laws  of  war  were  to  be  applied  to  this  rebellion, 
as  though  it  had  been  a  contest  between  two  iudependent  nations. 
This  being  the  fact,  then  what  is  the  law  of  war  with  reference  to 
projierty  ca^jtured  ?  "What  becomes  of  the  title  when  the  property 
is  captured  ?  is  the  next  qnestion.  Let  me  say,  without  citing  author- 
ities, that  it  is  indisputable  that  whenever  a  vessel  is  captured  from 
that  moment  the  municipal  title  is  divested,  if  the  vessel  is  not  within 
twenty-four  hours  taken  from  the  captor.  If  not  taken  within 
twenty-four  hours  there  is  no  municipal  title  unless  by  the  doctrine  of 
postliminy,  which  is  a  war  right  and  never  obtains  after  peace  has 
been  made  or  an  amnesty  proclaimed,  in  existence  whatever.  When- 
ever those  vessels  were  captured,  there  being  civil  war  and  the  law 
of  nations  applying  to  that  war,  the  title  of  the  individual  was  for- 
ever divested  unless  the  vessels  were  recaptured  within  twenty-four 
hours  ;  and  this  was  not  done  with  reference  to  any  of  this  property 
for  which  recovery  was  had  before  the  Geneva  tribunal.  We  will 
cite  the  authorities  to  establish  this  before  we  proceed  further. 

The  first  authority  I  will  cite  on  that  point  is  one  perhaps  not  alto- 
gether unfamiliar.  I  quote  from  Blackstone's  Commentaries,  book 
second,  page  400.  Speaking  of  the  title  by  occupancy,  and  the  prop- 
erty as  to  which  title  by  occupancy  may  be  obtained,  the  commenta- 
tor says : 

It  hath  also  been  adjudged  that,  if  an  enemy  take  the  goods  of  an  Englishman, 
which  are  afterward  retaken  by  another  subject  of  this  kingdom,  the  former  owner 
shall  lose  his  propeity  therein,  and  it  shall  be  iudefeasibly  vested  in  the  second 

taker. 

That  is,  if  these  vessels  have  been  taken  by  the  confederate  cruisers 
and  retaken  by  another  citizen  of  the  United  States,  the  title  would 
be  indefeasibly  vested  in  the  second  taker,  and  the  prior  owner's 
title  would  be  forever  gone  : 

T7nless  they  were  retaken  the  same  day  and  the  owner  before  siuiset  puts  in  his 
claim  of  property.  "Which  is  agreeable  to  the  law  of  nations  as  undeistood  in  the 
time  of  Grotius.  even  with  regard  to  captures  made  at  sea,  which  were  held  to  be 
the  property  of  the  captois  after  a  possession  of  twenty -four  houjs. 

The  next  authority  I  will  cite  in  support  of  that  proposition  is  Hal- 
leck  on  International  Law,  page  c;66 : 

"With  respect  to  things  taken  by  the  enemy,  the  Boman  law  considered  them  as 
withdrawn  from  the  category  of  legal  relations  during  the  period  of  the  enemy's 
possession  of  them.  If  retaken  by  their  former  owner,  they  became  his  by  the  re- 
capture ;  but,  if  retaken  by  the  State,  they  were  considered  as  booty  or  prizes  of 
war,  the  original  right  of  property  being  extinguished  by  the  intervening  hostile 
possession. 

Then  again  on  page  870 : 

Bnt  the  difficulty  of  recognizing  things  of  this  nature — 

Speaking  of  personal  property — 

■with  anj'  degree  of  certainty,  and  the  endless  di.sputes  which  would  spiiug  from  a 
revendication  of  them — 


11 

As  we  fiud  -xell  illustrated  in  this  case — 
have  introduced  a  contrarr  practice  in  modem  times:  and  the  title  of  the  former 
owner  to  all  hooty  is  ooasideied  as  completely  diveste  d  by  a  fimi  possession  of  the 
captor  of  twenty-four  hours. 

Then  he  gives  the  law  with  reference  to  real  jiroperty,  which  is  not 
relevant  to  this  case. 

The  next  authority  we  cite  on  that  proposition  is  volume  3  of  Phil- 
limore's  International  Law,  page  504  : 

"With  respect  to  mcvahle  property  or  prize  captured  in  a  war  by  sea,  all  such 
property  is  vested  in  the  captor.  If  he  part  with-  them  to  a  neutral,  the  former 
proprietor  is  not  entitled  to  claim  them. 

Then  again,  on  page  509 : 

Bynkershock.  however,  ajrrees  with  Grotins  that  movable  gooA»  are  now,  without 
distinction,  subjects  of  prize,  and  divested  of  the  privileges  of  postliminy.  As 
goods  captured  from  the  enemy,  he  argues,  vest  in  the  captor,  it  follows,  when  re- 
captured, they  vest  in  the  recaptor. 

The  exception  to  this  we  will  state  in  a  moment :  That  the  doc- 
trine of  postliminy  extends  the  time  within  which  the  recapture  oc- 
curs, but  never  extends  beyond  the  re-establishment  of  peace.  An 
amnesTy  in  civil  war  is  the  same  as  a  treaty  of  peace  in  case  of  foreign 
war,  and  that  amnesty  occurred  before  there  was  any  recovery  of  this 
property  back. 

The  next  authority  I  cite  is  Hopnor  vs.  Appleby,  5  Mason,  pages  "tn, 
76.    I  read  from  the  opinion  of  Judge  Story  : 

The  orisinal  ownership  of  The  enemy  is  entirely  divested  by  the  capture;  and 
thouj;h  a  title  good  ag.iinst  all  the  world  may  not  ue  conveyed  to  a  neutral  vendee 
by  the  cajjtors  uiiless'there  be  a  vcKular  coiidemuatioiyis  prize,  or  a  treaty  of  peace 
which  continns,  by  iuiplic.atiou.  the  existiu":  title  a"d  state  of  things,  yet  thia 
does  not  interlVre  with  the  general  right  of  the  captors  to  sell  the  property  or  dis- 
pose of  it  as  rightful  itroprietors  jure  belli  and  possessors  de  facto. 

Then  with  reference  to  the  eifect  of  destraction  being  the  same  as 
that  of  sale  : 

The  cajitors  had  a  plenary  dominion  over  the  property  by  the  capture,  and  might. 
80  fai-  as  she  was  conctiiie'i.  have  burned  or  de.stroyed  it,  or  disposed  of  it  iu  any 
other  manner  which  they  pleased. 

We  claim  that  these  authorities  establish  that  by  the  capture  what- 
ever municipal  title  exi.sted  as  to  any  of  this  pio]ierty  was  totally 
and  entirely  divested.  Then  on  what  ground  dt»cs  tlie  doctrine  of 
subrogation  on  which  the  insurance  companies  claim  stand  ?  They 
are  subrogated  they  say  to  the  rights  of  the  owner  of  the  vessel.  I 
admit  it.  If  theie  be  any  *7^(.<!  rtcupcrandi  the  insurance  companies 
are  rightly  by  law  subrogated  to  it ;  but  if  there  be  no  f'lJts  n'CiqKtuudi, 
they  are  not  subrogated. 

Now,  if  tlie  title,  was  utterly  and  entirely  extinguished  as  to  the 
owner  of  the  vessel  from  the  tinie  of  her  capture,  what  was  tliere  of 
spts  r<xiiiHraii(Ji  as  to  which  these  insurance  companies  can  be  suljro- 
gated  ?  Th^-y  insured  under  tlie  laws  of  war  :  they  took  the  risks  of 
a  state  of  war.  as  well  its  laws  as  its  arms.  You  might  conceive  one 
of  the  insurance  agents  going  to  a  slii]i-owner  and  stating  the  price 
of  insurance.  The  shii>-owner  might  object  that  the  jirice  was  too 
high.  The  agent  would  reply  that  they  had  to  take  the  risk  of  the 
property  being  ca])tured,  and  if  it  was  captured  tli<^ro  would  be  no 
gpes  rfcuptrHudi.  That  is  doubtless  the  way  the  insurance  agents 
talked,  au<l  it  is  good  law.  They  assumed  the  risks  of  war  when  they 
charged  war  premiums.  This  is  one  of  the  very  risks  they  bargained 
for,  because  tlie  law  of  the  land  enters  into  and  couBtitutes  a  part  of 
every  contra'-t.  • 

Then  these  parties,  knowing  that  in  the  event  of  oai»ture  the  title  of 
the  owner  was  forever  gone,  charged  for  that  and  received  their  pay 


12 

for  it,  so  th;it  they  have  neither  law  nor  equity  upou  which  to  base 
their  alleged  right  of  subrogation. 

Subrogation  never  exists  as  to  a  mere  moral  or  imperfect  right.  We 
may  illustrate  that  in  this  way:  A  wealthy  father  might  advise  his 
son  to  euter  into  some  commercial  enterprise  regarded  as  likely  to  be 
remunerative.  The  son,  upon  the  advice  of  the  father,  enters  into 
the  undertaking  and  perhaps  insures  the  vessel  in  which  he  ships  his 
cargo  abroad.  That  vessel  is  lost.  In  that  event  would  there  be  such 
a  thing  as  subrogating  the  insurance  company  to  the  moral  right 
which  the  father  might  feel  to  be  his  duty  to  recognize  in  reference 
to  re-imbur.siug  his  son  ?  Subrogation  does  not  existiu  regard  to  moral 
right. 

These  parties  made  their  contract  on  the  very  basis  that  in  case  the 
vessel  was  captured  their  spes  recitperandi  was  gone.  They  made  a« 
war  premium  lit  for  that  risk.  They  have  neither  in  equity  nor  in 
law  a  right  to  claim  anything  moi'e  than  any  other  citizen  should  claim. 
That  is,  if  they  have  actually  lost  they  shall  be  re-imbursed.  The 
Treasury  Department  of  the  United  States  under  all  circumstances 
has  always  denied  that  insurance  companies  were  entitled  to  subroga- 
tion. In  su])port  of  that  I  quote  from  page  133  of  the  Digest  of  De- 
cisions of  the  Second  Comptroller,  section  974 : 

Certain  steamboats  while  impressed  into  the  military  service  of  the  Uiiiteil  States 
vrere  destroyed  by  tire,  ■n'ithout  any  fault  or  neglijtcnce  of  the  owners.  The  risks 
taken  by  the  underwriters  were  liquidated  and  paid  for,  and  claim  by  them,  as  sub- 
rognted'to  all  the  rights  of  the  assured,  made  under  the  act  of  Mareha,  1849,  for  the 
amount  thus  jiaid  ;  out  it  was  held  that  the  piinciple  of  equitaVde  subi'ogation  ap- 
plied only  in  favor  of  the  Government,  the  underwriters,  as  for  the  owners,  having 
by  their  policies  of  insurj^ice  ;fj/-y  tanto  agreed  to  incur  the  risk. 

Therefore,  as  a  fact,  if  they  had  taken  pains  to  incpiire  independ- 
ently of  the  law  which  they  were  bound  to  know,  they  would  liave 
found  that  subrogation  was  never  recognized  in  such  cases. 

And  here  it  may  not  be  malai)ropos  to  refer  to  a  discussion  which 
occurred  in  the  Senate.  The  honorable  Senator  from  Ohio,  [Mr.  Thur- 
MAX,]  for  whose  character  and  judgment  alike  I  have  a  regard  closely 
bordering  upon  reverence,  I  apprehend  was  misled  somewhat  in  his 
judgment  in  this  case  by  a  case  which  he  there  cited.  And  the  same 
view  was  taken  by  the  honorable  chairman  of  the  Committee  on  the 
Judiciary  [Mr.  Kxott]  in  this  dicussion.  That  was  the  case  of  Com- 
egys  vs.  Vasse : 

A  ship  that  was  insured  was  illegally  captured  by  the  Spaniards.  In  the  coui'se 
of  time  Vasse  became  bankrupt,  <kc. 

That  is,  the  ship  was  illegaUy  captured  by  the  Spaniards.  If  in  time 
of  peace  a  nation  with  whom  we  are  at  peace  captures  a  vessel  be- 
longing to  a  citizen  of  the  United  States,  that  is  an  illegal  capture ;  but 
if  the  vessel  is  captured  by  a  nation  with  \yhich  we  are  at  war,  then 
it  is  a  legal  capture.  This  case  of  Comegys  vs.  Vasse  turned  upon  the 
legalty  of  the  capture.  The  right  of  subrogation  was  a/lmitted  in 
that  case  because  there  was  a  distinct,  living,  tangible  right  and  title 
in  tlie  }>arty  who  had  been  wronged  by  the  illegal  capture.  The  rul- 
iug  in  that  case  is  entirely  inappropriate  to  this,  in  that  under  the 
law  of  nations  this  was  a  legal  capture,  and  divested  the  municipal 
Title.  Whereas  in  the  case  of  the  Spanish  capture  that  was  an  ille- 
gal capture,  and  the  municipal  title  continued  to  live  just  as  much 
after  the  capture  as  before.  It  was  a"  change  of  jn'operty  iu  x>ossession 
to  property  in  action  only ;  the  right  of  jiroperty  existed  the  same 
after  the  illegal  capture  as  before. 

But  the  right. of  property  did  not  continue  to  exist  in  the  case  of 
these  vessels  captured  by  the  confederates,  because  that  cajjture  was 
made  in  a  state  of  war.     I  think,  therefore,  the  Spanish  case  misled 


13 

TO  some  extent  the  judgments  of  those  who  are  usually  so  thoroughly 
informed  and  for  whose  opinion  we  have  such  unbounded  respect. 

We  claim,  then,  that  there  was  no  municipal  titJp  left  in  any  one 
as  to  which  there  could  be  any  subrogation.  Then  how  does  that 
award  stand  ?  Just  in  this  position  :  it  was  recovered  for  a  breach 
of  neutral  duty,  recovered  by  the  United  States  against  Great  Britain, 
not  upon  any  municipal  title,  but  upon  the  national  paramount  title 
of  the  United  States  as  a  sovereign.  Then  what  should  be  done  with 
this  money  ?  The  nation  should  be  simjily  and  fully  .just  ;  if  th^re  be 
one  single  dollar  that  should  be  paid  back  to  Great  Britain  it  should 
go  back  there,  because  justice  is  our  highest  duty.  But  there  is  uo 
evidence  and  no  inference  to  be  derived  from  anything  that  has  trans- 
pired in  the  present  examination  astoany  injustice  having  been  done 
to  Great  Britain.  We  are  to  assume,  as  we  would  with  leferenee  to 
any  court,  that  those  who  acted  upon  this  case  considered  it  care- 
fully ;  that  they  were  honest  and  competent,  and  that  they  rendered 
judgment  for  no  more  than  was  right.  Unless  somebody  establishes 
attirmatively  that  the  tribi^na!  did  give  judgment  for  more  than  was 
destroyed,  we  owe  no  duties  to  Great  i^ritain  so  far  as  that  question 
is  concerned. 

Then  as  to  the  claims  of  citizens,  the  fund  is  left  in  the  possession 
of  the  United  States  to  be  distributed  to  those  who  according  to  the 
policy  of  the  nation  and  the  principles  of  natural  justice  would  be 
entitled  t<>  receive  it.  The  national  policy  is  to  encoiirage  commerce. 
'I'liis  fund  is  just  as  free  lor  distribution  as  are  the  vessels  captured 
by  United  States  men-of-war.  The  capture  of  any  prize  by  a  United 
States  vessel  during  war  vests  the  title  in  the  United  States;  but  we 
have  passeil  certain  laws  by  which  the  Government  distributes  this 
as  prize-money  among  seamen  in  recognition  of  the  meritorious  serv- 
ice of  those  whose  valor  has  won  it.  This  is  our  policy  with  the  view 
*of  maintaining  energy,  vigor,  and  gallantly  in  our  Navy. 

Now  this  fund  stands  in  just  the  same  relation.  Here  is  property 
vested  in  the  United  States  by  virtue  of  her  paramount  title.  It  is 
her  interest  and  her  duty  to  distribute  it  to  that  branch  of  industry 
from  which  it  has  been  derived.  We  desire  to  encourage  commerce. 
The  Government  invited  citizens  under  her  flagjto  go  into  all  parts  of 
the  world.  They  rendered  to  her  the  duty  of  allegiance  ;  she  i)roui- 
ised  to  them  The  correlative  duty  of  protection.  Slie  really  had  en- 
tered into  the  obligation  to  protect  these  jiarties  who  had  invested  in 
commerce  and  whose  merchandise  was  destroyed  or  who  were  ol>ligcd 
to  pay  war  premiums.  Then  her  duty  is  to  perform  that  promise. 
The  yiromise  was  made  as  mr.ch  to  one  as  to  another.  The  Govern- 
ment is  bound  now,  as  I  understand,  by  no  kind  of  municii)al  title, 
but  is  simply  bound  to  do  that  which  national  policy,  national  honor, 
or  the  principles  of  simi:de,  natural  justice  may  dictate. 

Having. invited  her  citizens  to  enter  tiius  into  commerce,  which  is 
(»no  of  the  great  sources  of  our  national  wealth,  it  was  the  duty  wf 
the  Government  to  ]>rotect  that  commerce.  She  was  unable  to  juo- 
tect  it  at  that  time  because  of  the  civil  war.  She  has  nyw  recoven-d 
a  fuufl  from  which  to  furnish  indemnity  in  lieu  of  the  protection  she 
owed.  '"i 

But  it  will  be  asked,  "Why  not  give  it  to  all  our  citizens  or  leave 
it  in  the  Treasury  as  a  connnon  fuml?"'  Beciuse  tliese  parties,  in 
consideration  of  the  invitation  of  tlie  (Jovernnient  to  eiitt^-  into  com- 
merce, risked  and  lost  that  which  others  did  not.  The,  parties  who 
owned  these  vessels  performed  every  duty  tliat  any  other  citizen  jier- 
formed  ;  luit  they  ran  this  additional  risk  an«l  incurred  this  a<ldilional 
loss.      The  Government  owed  to  tlicm  this  additional   i)rotection,. 


14 

which  it  failed  to  give  them.  Hence  tliey  are  entitled  to  be  remuuer- 
;ated.  Those  who  lost  vessels  which  were  not,  as  they  say,  incul- 
pated— bnt  in  my  v^w  of  the  case  it  is  nnimportiint  whether  they  were 
inculpated  or  exculpated,  because  there  is  no  title  to  this  fund  in  any 
citizen — those  who  lost  vessels  which  were  destroyed  by  these  cruisers 
before  they  were  inculpated  were  just  as  much  invited  to  enter  into  this 
commerce  as  those  that  were  destroyed  by  cruisers  a  f  ter  they  were  incul- 
pated. We  might  take  a  single  illustration,  the  Delphine.  Before  the 
Shenandoah  passed  into  Melbourne  she  was  alleged  to  be  exculpated ;' 
after  she  passed  into  Melbourne  and  came  out  she  was  inculpated. ' 
"She  destroyed  the  Delphine  perhaps  twenty-four  hours  before  she 
went  into  Melbourne  ;  and  twenty-four  hours  afterward  she  de- 
stroyed another  vessel.  Now  the  duty  of  the  Government  toward  the 
owner  of  the  Delphine  was  just  as  high  as  toward  the  other  vessel. 
The  right  of  protection  was  just  the  same  in  each  case.  Both  pari- 
ties had  rendered  the  same  allegiance  ;  both  incurred  the  same  loss  ; 
hence  natural  equity  says  that  they  should  receive  the  same  com- 
pensation. Therefore  I  would  from  this  fund  make  compensation 
to  all  those  who  actually  lost  ships  and  to  whom  the  United  States 
owed  protection. 

Then  again,  with  reference  to  the  war-premium  claimants.  The 
honorable  chairman  of  the  Judiciary  Committee,  in  his  remarks  on 
this  subject,  said  that  this  war-iiremium  business  was  a  bet  on  their 
part.  Not  at  all ;  it  was  a  contract,  with  all  the  relations,  i)i-ovision8, 
and  incidents  of  a  contract.  He  says  it  was  entered  into  in  ordei* 
that  the  owner  of  the  ship  might  sleep  soundly  at  night.  But  the 
insured  gave  his  allegiance  to  his  Government  that  he  might  sleep 
soundly  at  night.  Perhaps  he  took  his  gun  upon  his  shoulder  and 
risked  his  life  that  he  might  sleep  soundly  at  night.  Why,  then, 
should  he  be  required  to  pay  this  additional  sum  that  he  might  sleep 
soundly  at  night?  For  he  has  paid  all  that  anybody  else  had  i)aid 
for  the  same  thing.  Bnt  it  may  be  alleged  that  this  was  a  voluntary 
payment.  If  it  was  a  voluntary  payment  and  a  reckless  one,  it  would 
not  be  justitiableto  re-imburse  him;  but  if  it  was  a  voluntary  payment, 
such  as  an  ordinarily-prudent  business  man  would  regard  as  justifi- 
able and  necessary  and  warranted  by  the  circumstances,  he  had  a 
right  to  make  this  payment  and  has  a  right  now  to  his  share  of  this 
fund,  because  the  Government  owed  to  him  this  protection  which  he 
had  to  provide  for  himself. 

Or  we  might  arrive  at  the  conclusion  by  another  way.  If  the  doc- 
trine of  subrogation — which  as  a  legal  doctrine  does  not  exist  in  the 
case — be  recognized,  it  might  be  said  to  the  insurance  companies : 
"  Why  not  subrogate  one  step  further  and  make  compensation  to  the 
man  who  lost  instead  of  him  who  made  the  money  f  Why  not  sub- 
rogate the  man  who  re-imbursed  you  to  your  right  ? "  But  the  true 
ground  upon  which  to  place  this  question  is  that  of  the  correlative 
diUies  of  allegiance  and  protection;  and  these  men  were  eiititled  to 
*  protection  without  paying  their  war  premiums,  so  that  they  might 
sleep  soundly  at  night,  as  the  honorable  chairman  of  the  Judiciary 
Committee  has  stated..  So  that  these  two  classes  of  claimants  are 
entitled  to  their  share  of  this  fuud,  and  entitled  justly. 

Then  the  third  class  which  my  amendment  would  leave  provision 
at  some  future  time  for  bringing  in  as  a  separate  element  are  those 
who  suftered  actual  physical  or  bodily  lossinthese  transactions.  He 
who  lost  a  hand  or  a  limb  is  just  as  much  a  sulferer  as  he  who  lost  a 
Tessel,  and  ought  to  be  re-imbursed  just  as  much.  Hence  my  amend- 
ment provides  that  after  paying  the  two  classes  to  which  I  have  ad- 
'verted,  the  balance  shall  remain  in  the  Tceasury  to  be  distributed  by 


fature  congressional  legislation  to  those  other  parties  who  have  suf- 
fered direct  losses  from  which  the  Government,  if  ahle,  should  have 
protected  them. 

These  are  the  views  we  have  with  reference  to  tliis  whole  transac- 
tion :  first,  this  money  was  recovered  upon  the  paramount  title  of 
the  nation,  and  upon  no  individual  title ;  second,  there  was  no  mu- 
nicipal or  individual  title  in  existence  at  the  time  of  its  recovery,  and, 
as  a  consequence  from  that,  there  can  be  no  subrogation;  and  third, 
the  coiTelative  duties  of  protection  and  allegiance  require  thi^t  that 
class  of  men  who  suHered  from  these  cruisers,  when  others  did  not, 
should  have  this  indemnity  extended  to  them  in  order  to  repair  their 
loss,  because  we  did  not  prevent  them  from  suti'ering  it. 

So  we  claim,  then,  this  is  the  course  which  should  be  adopted.  We 
stand  a.s  a  sovereign,  above  every  muTiicipal  law  or  technicality.  We 
own  this  fund  simply  to  do  right.  The  nation,  accortliug  to  the  an- 
cient view  of  a  sovereign,  was  endowed  with  the  right  or  prerogative 
of  personal  dignity.  That  is  the  special  pre-eminence  which  the 
sovereign  has  above  all  other  persons  and  the  ordinary  course  of  law 
by  right  of  sovereign  dignity.  We  stand  above  the  ordinary  course 
of  law  to  look  upon  this  whole  field  in  its  full  breadth,  standing,  as 
it  were,  as  the  vicegerent  of  the  Creator  himself  to  do  just  what  is 
right  and  make  whole  every  one  who  lia«  lost  in  this  transaction. 
We  are  not  to  view  it  through  any  translucent  medium  of  municipa,! 
law,  but  through  the  transparent  ether  of  absolute  distinct  uatiu-al 
justice. 

We  ask  this  House,  then,  to  adopt  the  amendments  we  have  intro- 
duced, so  that  instead  of  turning  over  to  insurance  companies  who 
have  already  made  a  large  amount  of  money,  or  if  they,  have  not,  the 
pre.sent  law  re-imburses  all  they  have  lost,  leave  it  to  those  who  liave 
suffered  absolute  personal  lossor  any  other  directions  whicli  may  have 
been  or  may  be  shown  to  have  taken  place 

Mr.  BLAS'D.  I  ask  the  gentleman  from  Pennsylvania  to  explain 
what  is  the  ditt'ercnce  between  the  proposition  he  advocates  and  the 
present  law  and  the  act  of  the  last  Congress. 

Mr.  JEXKvS.  The  act  of  the  last  Congress  only  provided  that  those 
whose  vessels  had  been  destroyed  l)y  the  inculpated  cruisers  shotdd  re- 
ceive their  pay — tliat  is,  by  those  they  claimed  or  tlionght  had  entered 
into  the  award — and  also  to  pay  insurance  companies  all  the  loss 
they  had  been  subjected  to  both  by  the  destruction  of  the  vessels 
which  were  destroyed  by  the  inculpated  or  exculpated  cruisers  in  ex- 
cess of  the  war  premiums.  This  goes  further  and  provides  for  all  ves- 
sels which  were  actuallv  destroved  by  the  coufederate  cruisers. 

Mr.  LOKl).     On  tlie  higli  seas. 

Mr.  .JKNKS.  On  tiie  Iiigh  seas,  of  course  ;  and  those  who  have  jiaid 
war  premiiims,  tiiat  is,  those  who  had  to  furnish  theirown  protection 
outside  of  tliat  tlie  Government  w  as  able  to  give  them.  The  balance, 
I  say,  shoiihl  n-niain  for  future  disposition. 

Mr.  IJLAXD.  Dc)es  it  pay  the  actual  loss  to  the  war-premium  men 
or  If  hat  tlw'v  liave  not  been  paid  back  ? 

Mr.  .JKN'kS.  Of  conrsi'  this  bilUonly  i)ays  the  actual  loss  to  war- 
premium  men.  As  I  view  this,  tln-rc  is  no  right  in  any  m.iii  to  claim 
any  profit  upon  this  wiiatevcr.  It  is  fniiy  the  loss  whii-h  sliould  be 
re-imbursed,  because  i>rotit  must  l»e  th*;  result  of  legal  right,  ami,  ;ih 
there  is  no  li-gal  right,  nothing  but  imperfect  right  lor  any  one  to  go 
upon  or  moral  <luty,  there  can  be  claimed  no  profit  l»y  one  man  as 
ag;iinst  anotht-r  in  I  his  distribution. 

Mr.  MILLS.  Did  the  insurance  comp.atiieH  pay  for  the.  vessels  which 
were  destroyed  by  the  coufederate  cruisers? 


16 

Mr.  JENKS.  They  paid  for  some  of  them,  aud  they  claim  the  wholer 
fund  in  consideration  of  having  paid  for  them. 

Mr.  MILLS.  Do  they  claim  the  whole  fund  in  consideration  of 
having  paid  for  part  of  them  ? 

Mr.  JENKS.  For  vessels  destroyed  by  the  inculpated  vessels  which 
they  had  insured. 

Mr.  MILLS.  Do  any  owners' of  any  of  the  vessels  whicli  had  been 
insured  aud  received  their  insurance  claim  any  part  of  it? 

Mr.  JENKS.     They  do  not,  as  I  understand  it. 

Mr.  MILLS.     Only  those  who  were  not  insured  ? 

Mr.  JENKS.  Ouly  those  who  were  not  insured  are  claiming  any 
portion  of  the  fund,  as  I  understand  it. 

Mr.  JONES,  of  Kentucky.  I  should  like  to  ask  the  gentleman  a 
(inestiou.  I  understand  the  gentleman  to  have  said  in  the  course  of 
his  remarks  that  at  the  time  these  commissioners  met  at  Geneva, 
where  they  determined  upon  the  amount  due  from  the  British  gov- 
ernment to  the  Goverument  of  the  United  States,  these  individual 
claims  had  not  been  presented  ? 

Mr.  JENKS.  I  say  the  individual  titles  were  not  considered.  It 
was  only  upon  the  paramount  title  of  the  nation  they  passed,  and 
there  was  no  individual  title  before  the  tribunal. 

Mr.  JONES,  of  Kentucky.  Bat  there  must  have  been  some  consid- 
eration of  the  various  claims  made. 

Mr.  JENKS.     Only  as  to  the  value  of  the  vessels. 

Mr.  JONES,  of  Kwitucky.  Before  the  amount  was  fixed  how  did 
they  arrive  at  any  amount  which  was  supposed  to  be  due  from  the 
government  of  Great  Britain? 

Mr.  JENKS.  They  fixed  it  by  the  value  of  the  vessels  which  were 
actually  destroyed. 

Mr.  LORD.    Aud  their  cargoes. 

Mr.  JENKS.  Yes ;  by  the  value  of  the  vessels  and  cargoes  de- 
stroyed. 

Mr.  JONES,  of  Kentucky.  Did  they  not  take  into  account  indi- 
vidual claims  ? 

Mr.  JENKS.  They  never  did  :  as  I  understand  it,  they  only  took 
into  account  the  nation's  claim  by  virtue  of  her  paramount  title,  and 
no  individual  title  was  before  that  tribunal  or  could  have  been  there. 
And  there  ivns  no  individual  title  in  existence  to  present  there.  That  is 
what  I  have  endeavored  to  demonstrate. 

Mr.  JONES,  of  Kentucky.  I  understand  that  a  great  many  indi- 
vidual claims  have  been  admitted  and  agreed  to  be  paid.  Now  the 
gentleman  contends,  as  I  understand  him — for  I  did  not  hear  all  his 
remarks — that  if  there  is  a  balance  of  this  amount  of  fifteen  millions 
and  no  further  claims  are  admitted  to  be  just  and  due,  then  it  should 
remain  as  belonging  to  the  United  States  Government? 

Mr.  JENKS.  It  would  remain,  provided  there  are  no  losses  that 
the  United  States  ought  to  comyieusate. 

The  SPEAKER  ^ro  teniiwre.  The  time  of  the  gentleman  fi'om  Penn- 
sylvania has  expired.  ^ 

Mr.  JONES,  of  Kentucky.  Jus^  allow  me  another  question,  "ap- 
pose there  should  be  no  claim  aud  that  a  balance  was  left  of  four  or 
live  million  dollars? 

Mr.  JENKS.  It  would  belong  to  the  United  States,  unless  some 
other  just  claim  thereto  should  appear, 

Mr.  JONES,  of  Kentucky.  Does  the  gentleman  l^old  that  it  should 
be  covered  into  the  Treasury  ? 

Mr.  JENKS.  I  hold  nothing  about  that  now,  as  the  fact  does  not. 
yet  anpear. 


THE    GENEVA   AWARD. 


SPEECH 


OF 


HON.  ELBRIDGE  G.  LAPHAM, 


OF  NEW  YORK. 


HOUSE  OF  REPRESENTATIVES, 


JULY   6,   1876. 


WASHINGTON 
187C. 


SPEECH  r 

OF 

HON     ELBRIDGE    G.  LAPHAM 


Ou  the  bill.  (H.  U.  No.  5685,)  reported  by  the  Committee  on  the  Judiciary,  forlliedis- 
iril)Utiou  of  the  unappropriated  money.s  of  the  Geneva  award. 

Mr.  LAPHAM.  Mr,  Speaker,  it  is  uot  my  puiiiose  to  enter  upou  a 
detailed  examination  of  the  precise  mode  in  which  the  remainder  of 
the  fund  in  question  shall  be  distributed  by  Congress  among  the 
various  cla.sses  of  claimants  thereto.  Agreeing  in  the  main  upon 
that  question  with  the  views  stated  by  the  majority  in  their  report,  I 
shall  brieriy  discuss  the  question  as  to  the  status  of  this  fund  and 
the  general  duty  of  the  Goverinneut  in  respect  to  it  and  its  distribu- 
tion. 

Three  important  ends  to  the  Government  of  the  United  States  were 
aimed  at  and  .sought  to  bo  attained  by  tlie  Geneva  arbitration  : 

First.  An  acknowledgment  on  the  part  of  Great  Britain  that  she 
had  been  guilty  of  a  violation  of  the  rights  of  neutrality  and  an 
aj)ology  therefor. 

Sec<nidly.  The  establishment  of  the  principle  or  doctrine  that  no 
neutral  shall  be  held  lialtle  I'di-  indirect  or  consecinential  damages  in 
case  of  a  violation  of  neutral  obligations,  but  only  for  the  direct  losses 
resulting  therefrom. 

Thirdly.  That  national  grievances  may  be  peaceably  and  honorably 
adjusted  by  the  modi-  of  arbitration,  so  that  war  and  all  its  attentl- 
ant  evils  and  sacrilices  may  Ik-  avoided. 

In  oriler  to  jicconqtiish  these  ends  the  Uniteil  States  early  took  the 
ground  no  claim  for  ;iny  indirect  or  conserpiential  danutges  shonld  bo 
insisted  on  by  the  Government,  and  that,  as  between  (Jreat  Britain 
and  the  United  States,  the  high  Iribniial  of  arbitration  were  at  lib- 
erty to  ]nononnce,  against  smh  allow;'.nce  as  ii  jninciple  of  inteina- 
tional  law. 

In  order  to  accomjdish  these  ends  and  leave  the  (government  en- 
tirely free  to  act  as  its  interest  might  seem  to  di(tat<%  the  I'resident, 
in  his  message,  in  Dectrmbcr,  H7(),  recommended  the  piirchasf  of  all 
individual  claims  in  the  following  languiige : 

I  tlierefore  recommend  to  f  .'iinKress  to  autliori/.o  tln!  aitpniiilimiil  ol  a  conimi.s- 
xion  to  takf  iiroot  of  tlio  ain'iuiit  and  tlic  owncrsliiii  of  iIicmi!  si'vcral  claiiiis.  *  " 
and  that  authority  be  n'vi-n  for  tlif  xi'ttli'iiitnit  of  tlie.Mi-  clainiH  by  tin*  rnilcd  Slates, 
HO  that  the  (Joveriinient  mIuiII  have  tin-  owiiiTsliiji  <d  the  pri\ati;  elaiiiiM,  a^^  well  a« 
the  reH])OUHible  eoiitiol  of  all  the  di'iiiaiids  a<{aiii^l  (irrat  liritaiu. 

Had  this  been  done,  it  is  self-evident  the  United  States  would  h:ivo 
jiaid  for  or  become  liable  to  p;iy  to  e\  ery  individual  having  a  claim  for 
loss  the  amount  thereof  or  such  sum  as  might  have,  been  tixed  by 
agreement,  and  in  that  event  the  sum  awai<led,  whatever  it  might 
have  betjn  would  have  belougt-d  absolutely  to  tlie  l'uit»d  States. 


B«loitt  tbcic  was  time  to  perfect  aiul  carry  cat  tliis  recommendation 
of  the  President  it  became  necessary  for  the  United  States  to  act  in  the 
premises,  and  so  great  were  the  promised  advantages  of  the  arbitra- 
tion, that  the  Government  decided  to  act  without  acquiring  the  rights 
or  claims  of  individuals ;  and  yet.  in  order  to  attain  those  ends,  it  was 
necessary  that  the  United  States  suould  assume  the  control  of,  and  the 
right  to  release  and  forever  discharge,  all  such  individual  claims,  as 
well  as  those  of  the  Government,  and  to  fully  release  the  government  of 
Great  Britain  therefrom.  Acting  in  such  an  emergency  and  for  such 
high  ends,  let  us  see  how  careful  the  United  States  were  not  to  become 
in  any  manner  committed  or  crippled  in  the  disposition  of  the  money 
awarded  when  it  should  have  been  received  by  us. 

In  the  instructions  given  by  Secretary  Fish  to  ISIessrs.  Gushing, 
Evarts,  and  Waite,  counsel  of  the  United  States,  he  said : 

The  President  desires  to  have  the  subject  discussed  as  one  between  the  two  gov- 
ernments, and  he  directs  me  to  uijie  upon  you  stiongly  to  secure,  if  possible,  the 
award  of  a  sum  in  gross.  In  the  discussion  of  this  question,  and  in^tlie  treatment 
of  the  entire  case,  you  will  be  careful  not  to  commit  the  Government  as  to  the  dis- 
position of  what  may  be  awarded.  *  *  *  Itispossible  that  there  may  be  duplicate 
claims  for  some  of  the  property  alleged  to  have  been  captured  or  destroyed,  as  in 
the  cases  of  insurers  and  insured.  The  Government  wishes  to  hold  itself  free  to 
decide  as  to  the  riglits  and  claims  of  insurers  upon  the  termination  of  the  case.  If 
the  value  of  the  piopcrty  captured  or  destroyed  be  lecovered  in  the  name  of  the 
Government,  the  distribution  of  tlie  amount'recovered  will  be  made  by  this  Gov- 
ernment without  committal  as  to  the  mode  of  distribution.  It  is  expected  that  all 
such  committal  be  avoided  in  the  argument  of  counsel. — Papers,  tCc,  volume  2, 
page  414 

A  gross  sum  was  awarded  and  received  by  the  United  States  in  full 
of  all  claims  of  every  description,  and  the  government  of  Great 
Britain  was  fully  and  forever  released  and  discharged  from  all  such 
claims. 

It  is  obvious  that  here  is  no  case  of  an  express  trust.  This  money 
was  not  received  or  obtained  with  the  privity  and  consent  of  any  of 
the  individual  claimants.  On  the  contrary,  the  Government,  for  the 
reasons  I  have  stated,  assumed  to  treat  the  entire  demands  as  its  oicu, 
and  to  deal  with  Great  Britain  upon  the  theory  it  was  the  owner  of 
all  those  claims,  and  had  the  right  to  arbitrate  and  negotiate  in 
respect  thereto,  and  to  receive  as  its  own  whatever  sum  might  be 
awarded  by  the  tribunal  of  arbitration. 

Yet  this  money  is  not  in  fact  the  money  of  the  Government,  is  not 
claimed  by  it,  but  it  is  conceded  it  belongs  to  some  one  or  more  of 
the  various  classes  of  claimants  for  damages  by  reason  of  the  unlaw- 
ful acts  of  the  British  government. 

What,  then,  is  the  tenni'e  by  which  this  money  is  held  by  the  United 
States,  and  what  is  the  duty  of  Congress  in  providing  for  its  distribu- 
tion? 

It  seems  to  me,  Mr.  Speaker,  that  the  analogies  in  familiar  cases  in 
equity  are  complete. 

A  person  takes  the  custody  and  control  of  the  personal  estate  of  a 
deceased  individual  and  deals  with  it  as  his  own.  The  law  converts 
hun  into  a  trustee,  and  makes  him  liable  as  an  administrator  dc  son 
tort. 

A  person  standing  in  loco  parentis  to  one  or  more  minors  assumes 
the  control  and  disposition  of  property  belonging  to  such  minor  or  mi- 
nors. The  law  converts  him  into  a  trustee  for  such  minor.  A  stranger 
cr  one  of  several  cestui  que  trusts  intrudes  upon  an  express  trust, 
and  assumes  the  whole  management  and  control  of  the  trust  prop- 
erty. The  law  converts  him  into  a  trustee,  and  renders  him  liable  to 
account  more  strictly  even  than  if  he  had  been  appointed  by  the 
court  to  execute  such  trust. 


An  attorney  purchases  the  property  of  his  cUeul  at  a  jiidioial  sale 
111  his  owu  name ;  the  law'  converts  him  iuto  a  trustee  tor  such 
client. 

Now  the  Government  of  the  United  States  has  assumed  the  power 
and  authority  to  deal  with  all  private  claims  as  its  owu  :  has  received 
a  gross  sum  therefor :  and  has  released  and  forever  discharged  all  such 
claims.  It  is  obvious  to  my  mind  that  this  money  is  held  in  t/ust  in 
the  sense  I  have  named,  and  that  the  trust  is  as  hroad  a)>d  compreheii- 
sire  as  the  claimn  tcMch  icerc  saiisjicd  and  discharged  by  the  payment  and 
receipt  of  such  gross  sum. 

Assuming  the  correctness  of  this  position  it  follows  as  a  funda- 
mental principle  that  in  the  distribution  of  the  fund  the  highest 
equity  is  first  Jo  prevail  and  each  equity  in  its  turn  according  to  its 
validity.  Following  this  rule  the  insurers  who  were  actual  losers 
have  already  Iteen  provided  for  and  paid.  It  would  seem  that  the 
actual  losses  of  property  uninsured  are  equitably  upon  the  same  foot- 
ing. But.  Mr.  Speaker,  as  I  said  in  the  outset,  I  do  not  propose  to 
discuss  the  detail  of  distribution,  contenting  myself  with  referring 
to  the  general  principles  upou  Avhicli  I  think  it  should  be  made. 

Here  then  is  no  express  trust,  no  limitation  upon  the  general  power 
of  distribution, except  .such  as  the  rules  of  equity  impose;  and  within 
that  range  Congress  is  left  free  to  dispose  of  this  money. 

Nor  was  it  in  the  power  of  the  government  of  Great  Britain  to  place 
^ny  limitation  or  check  upon  the  power  to  distribute  this  fund.  She 
was  the  wrong-doer  and  cannot  l)e  itermittcd  by  objecting  to  the  allow- 
ance of  one  claim  or  class  of  claims  to  deprive  such  claimants  of  their 
c'fjuitable  rights. 

But,  Mr.  Speaker,  gentlemen  who  dift'er  with  the  views  I  have  ex- 
pressed say  by  the  terms  of  the  award  the  money  belongs  to  a  class  of 
claimants,  the  insurance  comiianies,  and  that  good  faith  demands  they 
should  be  preferred.  I  cannot  concur  in  this  view.  I  have  very 
briefly  endeavored  to  show  the  money  was  not  paid  or  receiveil  for 
any  such  purpose.  I  do  not  deny  the  obligation  of  good  faith  in  the 
disposition  of  this  money.  \\'iiy  are  the  persons  to  whom  I  have  re- 
ferred in  supposing  cases — the  administrator  dc  f<on  tort,  the  person 
in  loco  parentis,  the  intruder  upon  an  express  trust,  the  attorney  pur- 
chasing liis  client's  property — held  liable  as  trustees?  It  is,  sir,  be- 
cause f/ood  faith  require^  it. 

It  was  a  remark  of  Michael  Ilofliuan.  in  the  New  York  constitu- 
tional convention  of  l-'4(),  s]»eaking  of  the  obligation  of  the  State  to 
its  public  creditors,  that  '"  Good  faith  is  a  jewel." 

It  is  so,  Mr.  Speaker,  between  private  individuals.  It  is  eminently 
80  between  a  governnuMit  antl  its  citizens.  Tht!  United  States  as- 
sumed to  take  this  money  as  its  own.  The  individual  claimants  were 
ignored,  'i'lie  paicntal  powi^rof  the  Government  was  exercised  for  tlm 
high  ends  to  which  I  have  referred.  Tiie  money  is  clearly  subject  to 
tlic  operation  of  tin-  bro;id  ei|nities  named,  and  tlu^  highest  iiimd  faith 
demands  at  the  haiuls  of  Congre.vs  that  actual  snllerers  shall  Ik-  pm- 
vided  for  in  its  distribution. 


c 


THE   GENEVA   AWARD. 

HONEST  FAITH  THE  NATION'S  SUPREME  NEED. 


SPEECH 


LLIS, 


HOUSE  OF  REPRESENTATIVES, 


JULY   1,   187G. 


W  iV  S  IT  I  K"  a  T  O  N  . 

18TG. 


SPEECH 


HOX.   BEXJAMIX  A.  WILLIS. 


The  House  having  under  consideration  the  hill  (H.  R.  Xo.  26S5)  reporteil  hy  the 
Committee  on  tlie  JuilicLary  for  the  distribution  of  the  uuapproiiriated  moneys  of 
the  Geneva  award — 

Mr.  WILLIS  sitifl : 

Mr.  Spkakeh  :  The-  cliscussioii  inauijuratoil  by  my  honorable  col- 
league, j\Ir.  LoiU).  possesses  rare  interest,  I'ar  exceeding  that  -which 
any  question  of  local  concern  can  excite.  It  relates  to  action  on 
the  part  of  the  United  States  Government  bearing  upon  the  disposi- 
tion of  a  trust  fund  placed  in  its  possession  by  award  and  decision  of 
arbitrators  pursuant  to  the  treaty  of  Washington.  Fidelity  to  in- 
ternational obligations,  the  maintenance  of  national  honor  by  strict 
regard  to  the  behests  and  conditions  imposed  by  such  award  and 
decision,  are  the  grave  questions  to  be  determined  by  the  action  of 
Congress  upou  the  jK'nding  bill.  It  becomes  ns  to  accept  as  an  ap- 
propriate rule  of  our  conduct  in  this  matter  the  decision  of  the  Su- 
l)reme  Courts  pronounced  by  Associate  Justice  McLean  in  these  words: 

The  action  of  a  sovoreijm  state  will  bo  characterized  by  a  nioi'o  scrnimlons  re- 
gard to  justice  and  l)ya  hi};her  souse  of  morality  than  belongs  to  the  ordinary  trans- 
actions of  inilividuals. 

Noble  words  these  and  fitly  spoken  then,  but  far  more  needed  now, 
when  vice  is  so  rami)ant  and  corrn)ttion  so  thoroughly  infused  in  all 
the  channels  of  commerce  and  government  that  sinqile  virtue  has 
scarcely  a  single  worshiper. 

STATEMENT  OK  THE  CASE. 

Mr.  Speaker,  my  honorable  colleague  has  aptly  stated  what  occurred 
l)eforc  the  Judiciary  Committee,  the  classes  of  clainnints  who  jtre- 
scnted  themselves,  and  some  of  the  facts  whicli  serve  to  illustrate  the 
histoiyof  wliat  are  known  by  tliegenciie  teiiiiof  "  the  .Mabamaclaims." 
lie  has  failed,  iiowever,  and  tluit,  too,  utterly,  to  give  place  and  ju'om- 
iiieuco  to  those  essential  facts  which  constitute  the  vfx  (ii'Mtv  of  the 
case,  and  out  of  wliich  arise  tlio  legal  and  moral  obliga) ions  of  the 
United  States  Government.  To  do  this  is  the  i)rovin(e  I  hav<'  assignt^d 
myself.  It  shall  be;  my  laiior  toexliil)it  tlii' i>re(ise  relation  which  \\w 
Goverinnent  sustains  to  the  fund  paid  pursuant  to  tlit-  award  made 
by  arbitrators  at  Geneva. 

It  is  (jnite  a  lal)or  of  supererogation  to  recite  all  the,  facts  of  liis- 
(ory  whicli  are  in  any  way,  directly  or  indirectly,  connected  with  the 
transaction.  I  will  confine  myself  to  a  recital  simjily  of  such  as 
Kitecially  Hcrv'e  to  cliaracterize  it. 

l-luriiig  the  war  of  iflieiliDii,  confederate  cruiserH  roanieil  over  the 
sea  which  were  liuilt  in  l^nglish  ship-yar<ls  and  were  (•oaI<^<l  at  En- 
glish liarbftrs ;  Ihey  commifte<l<lepredat  Ions  uimn  .Vniirican  cunimcrec  ; 


destroyed  Aiiieiiciin  sliipiiina' ;  multiplied  risks  to  such  an  extent  that 
preniiuiiis  were  enhanced,  the  war  prolonged,  and  its  costs  enlarged 
incalculably,  so  that  every  American  citizen — the  whole  country — 
sutteretl  loss.  . 

I'ending  war,  when  the  peojile  ^^■ere  ahsorhed  v.ith  its  grand  prob- 
lems and  int(  nt  only  on  the  salvation  oi'  an  imjieriled  licpulilic,  they 
slept  upon  their  rights,  the  Government  contenting  itself  simply  with 
forwarding  claims  of  its  citizens  and  entering  its  occasional  protests. 
But  when  rebellion  was  suppressed  and  arms  silent,  urgent  steps  were 
taken  ;  Great  Britain  was  summoned  to  answer  for  its  responsibility 
ill  permitting  confederate  cruisers  to  he  built  and  launched  as  a  curse 
upon  the  seas  to  blight  and  destroy.  Negotiations  Avere  entered  into 
"with  a  view  of  ascertaining  the  exact  measure  of  such  responsibility. 

Succeeding  the  outbursts  of  fierce  hate,  of  cries  for  vengeance  into 
which  the  country  in  a  moment  of  frenzy  and  resentment  indulged, 
came  a  calm,  intelligent  desire  on  the  part  of  the  better  elements  of 
the  two  nations  to  adjust  amicably  and  permanently  all  existing 
grievances  and  ditilerences  between  them.  Such  desire  found  expres- 
sion in  what  is  known  as  the  trcatyof  Washington,  Avhich  constituted 
the  most  glorious  victory  of  peace  achieved  in  the  history  of  the 
world,  not  surpassed  by  that  great  victory  of  war  which  determines 
the  perpetuity  of  our  Eepublic.  The  former  was  a  fitting  sequel  of 
the  latter :  First,  the  brotherhood  of  man  ;  second,  the  brotherhood 
of  nations.  Such  treaty  contained  everything  that  the  keenest,  most 
scrupulous  sense  of  honor  on  our  part  demanded;  it  expressed  regret 
for  wrongs  committed;  it  provided  an  ample,  satisfactory  mode  for 
the  redress  of  such  wrongs;  it  prescribed  the  rules  which  should  con- 
trol the  adjudication. 

Here  is  the  language  of  the  treaty  in  so  far  as  it  has  special  refer- 
ence to  the  purpose  of  my  argument : 

AUTICLE  I. 

Whereas  difforences  liave  arisen  between  the  Goveminent  of  the  United  States 
and  the  f;i)vornincnt  of  Her  Britannic  Majesty,  and  still  exist,  growinL;  out  of  the 
acts  coiiiniitted  hy  the  several  vessels  whicli  have  ^iven  rise  to  the  claims  generic- 
ally  known  MS  tlic  "Alabama  claims ;  "  and  whereas  Her  Britannic  Majesty  has  au- 
thorized lier  liijrh  commissioners  and  plenipotentiaries  to  express  in  a  friendly 
spirit  the  regret  felt  by  Her  Majesty's  government  for  the  escape,  nnder  whatever 
circnmstauces,  of  the  Alabama  and  other  vessels  from  British  ports,  and  for  the 
depredations  committed  by  tliose  vessels; 

Now,  in  order  to  lemove  and  adjust  all  complaints  and  claims  on  the  part  of  the 
United  States,  and  to  provide  for  the  speedy  settlement  of  such  claims,  which  are 
not  admitted  by  Her  Britannic  Majesty's  government,  the  liigh  contracting  parties 
agree  that  all  the  said  claims  giowing  out  of  acts  coiiimitteil  by  tlie  aforesaid  ves- 
sels, and  generically  known  as  the  "^Vhibaina  i  luiiris,"  sb;ill  be  rcfen-ed  to  a  tribu- 
nal of  arbitration,  to  be  composed  of  live  arbitrators,  to  lie  ajipointed  in  tlio  follow- 
ing manner,  that  is  to  say : 

Akticle  VI. 

In  deciding  the  matters  submitted  to  tlie  arbitrators  they  shall  be  oovi  nied  by 
the  following  tliree  rules,  which  are  agreed  upon  by  the  liigb  coiitiaiting  ])arties 
as  rules  to  be  taken  as  applicable  to  the  case,  and  by  such  jjiincinlcs  of  iiitcTUittional 
law  not  inconsistent  therewith  as  the  arbitrators  shall  determuie  to  have  been  ap- 
pUcable  to  the  case : 

UULES. 

A  neutral  government  is  bound — 

First.  To  use  due  diligence  to  prevent  the  fitting  out,  arming,  or  equipping 
within  its  jurisdiction  of  any  vessel  which  it  has  reasonable  gi-ound  to  believe  is 
intended  to  cruise  or  to  carry  on  war  against  a  power  with  which  it  is  at  peace ; 
and  also  to  use  like  diligence  to  prevent  the  departure  from  its  jurisdiction  of  any 
vessel  intended  to  cmise  or  carry  on  war  as  above,  such  vessel  having  been  spe- 
cially adapted,  in  whole  or  in  part,  within  such  jurisdiction,  to  warlike  use. 

Second.  Not  to  permit  f)r  sutFer  either  belligerent  to  make  use  of  its  ports  or 
waters  as  the  base  of  naval  operations  against  the  other,  or  for  the  purpose  of  the 
renewal  or  augmentation  of  military  supplies  or  anus,  or  the  recruitment  of  men. 


Thiril.  To  exercise  due  diliseiice  iu  its  own  ports  ami  waters,  and,  as  to  all  per- 
sons witbiu  its  jurisdiction,  to  prevent  any  violation  of  tiie  f  jregoiug  obligations 
and.  duties. 

And  the  high  eouti'acting  parties  agi-ee  to  observe  the.se  rules  as  between  them- 
selves in  the  future,  and  to  bring  them  totlie  knowledge  of  other  maritime  powers, 
and  to  invite  tliem  to  accede  to  tliem. 

Article  XI. 

The  high  contracting  paitiis  oiiga'^e  to  consider  the  result  of  the  procetdings  of 
the  tribunal  of  arbitration  ami  of  tin-  boanl  of  assessors,  should  such  iioard  be  ap- 
pointed, as  a  full.  ])crtVct.  and  linal  sclllcnunt  of  all  the  claims  hereiubefyrt-  referred 
to  J  and  furtlier  engage  that  every  such  claim,  whether  the  same  may  or  may  not 
have  been  presented  to  the  notice  of,  made,  preferred,  or  laid  before  tlie  tribunal 
or  boai'd.  shall,  from  and  after  the  conclusion  of  the  proceedings  of  the  tribunal  or 
board,  be  consideied  and  treated  as  tiually  settled,  barred,  and  hencefoith  inad- 
mi.ssible. 

Having  adduced  the  evidence  of  this  fact,  the  United  States  will  next  endeavor 
to  indicate  to  the  tribunal  of  arbitration  what  they  deem  to  have  been  tlie  duties  of 
Great  IJritain  toward  the  Uuitetl  States  in  respectto  the  several  cruiseis  which  will 
be  named  in  this  paiier. 

Sitch  is  the  treaty. 

Then  the  liijih  court  of  nations  is  duly  ai))ioiiite(l,  assciiililes  at 
Geneva,  and  organizes.  The  higli  parties  litigant  appear  through 
agents  and  able  counsel  and  present  pleas:  botli  those  growing  out 
ot  "WTongs  done  to  the  nation  and  wrongs  done  to  its  citizens. 

By  the  terms  of  the  treaty  just  read  a]l  chiinis  growing  out  of  the 
acts  committed  by  tiie  Alabama  and  otlier  vessels,  which  in  any  man- 
ner had  escaped  from  British  i)orts,  were  submitted  for  arbitration. 
]:r;sui.TS  of  adji'dicatiox. 

England  interjxjsed  a  demurrer  on  the  ground  that  by  the  intent 
and  scope  of  the  treaty  of  Washington  the  claims  for  indirect  dam- 
age, as  liere  indicated— namely :  a,  The  loss  of  commercial  marine  to 
the  American  tiag ;  h,  The  enhanced  payments  of  insurance;  c.  The 
prolongation  of  the  war  and  consequent  addiii<uial  cost— should  not 
be  entertained  or  allowed. 

The  demurrer  Avas  sustained. 

Had  the  I'nited  States  insisted  ujiou  tlieir  further  consideration 
the  arbitration  would  have  been  dissolved,  and  a  grand  stride  toward 
universal  peace  would  not  have  been  taken. 

But  the  agent  of  the  IJnired  States  telegraplied  .Secretary  Fish, 
Juno  I'J,  1872 : 

"We  arc  of  the  opinicm  that  tlieannonnoenient  this  day  made  by  tlu^  tribunal  nuiat 
bo  received  bv  the  L'uited  States  us  determinative  of  itsjudguient  tipon  the  <iue.s- 
tion  of  public  law  involved,  upon  wliich  the  United  Stales  have  insisted  upon  tak- 
ing (heir  oiiinion. 

The  tril>unal,  yon  will  ob.scrvc,  had  determined  adversely  to  these 
indirect  claims,  and  the  United  States  had  insisted  upon  I  lie  oi.iiiinn 
being  renderi-d. 

Let  no  member  of  this  Hou.se,  in  the  i)reseneo  of  such  iirefutablo 
testimony,  pretend  that  these  indirect  claims  were  not  rejected  by  thts 
tribunal  after  due.  consideration. 

Listen  furth(;r:  On  .June  2'i,  l>'7'-i,  Secretary  Fish  telegraphs  (o  tlio 
United  Slates  agent,  in  reply  to  the  di«ii;itch  already  read  : 

I  hnvr- laid  yoiw  lidegiains  before  the  I'nsiihnt.  who  dii-ecls  nie  t<i  say  that  ho 
accepts  Ibr  drcbiiatioti  of  the  IrilMinal  a«  lis  jud^iiiiiit  u)ion  a  i|UcHtion  of  jinblic, 
law  which  In- felt  Ibal  the  inlercslH  of  Uilli '^ov  ii  nimiils  rr.|uir<d  KJiould  be  de- 
cided, and  foi  the  ibti  rmin.-ilion  of  wliirh  he  had  f«lt  it  iiiipi>rlaiil  lo  present  Die 
clainiH  lefcind  to  for  tlie  purpii.se  of  taking  the  o|jiiii<iii  ot  tin-  tribunal. 

You  will  note  the  languago  of  tliis  dispatch.  Tlie  President  aceejits 
a  ihclaration  of  the  tiiluinars  judgineiit.     Ife  ft'lt  it  important  to 


present  tlie  claims  i-eferred  to.     But  note  furtlitr.     The  same  tele- 
gram contains  this  unmistakable  language : 

We  had  no  wish  for  a  pecuniaiy  award,  but  desired  an  expression  by  the  ti'ibii- 
iial  as  to  the  liability  of  a  neutral  for  claims  of  that  character.  (M.eauing  indirect 
claims.) 

The  President  therefore  further  accepts  the  opinion  and  advice  of  the  counsel  as 
set  forth  above,  and  authorizes  the  announcement  to  the  tribunal  that  he  accepts 
their  declaration  as  determinatiye  of  their  judgment  upon  the  important  question 
of  public  law  upon  which  he  had  felt  it  his  duty  to  seek  the  expression  of  their 
©pinion  ;  and  that,  in  accordance  with  such  judgment  and  opinion,  fi-om  henceforth 
he  regards  the  claims  set  forth  in  the  case  presented  on  the  part  of  the  United 
States,  for  loss  iu  the  transfer  of  the  American  commercial  maiine  to  the  Biitish 
flag,  the  enhanced  payment  of  insurance,  and  the  prolonj^ationof  the  Avar,  and  the 
additi(m  of  a  large  suiu  to  the  cost  of  the  war,  and  the  suppri-ssiiindf  the  rebellion, 
as  adjudicated  and  disposed  of ;  and  that  consequently  tliey  «  ill  not  be  further  in- 
sisted upon  before  the  tril)unal  by  the  United  States,  but  are  henceforth  excluded 
from  its  consideration  by  the  tribunal  in  making  its  award. 

FISH. 

After  snch  a  declaration  from  the  Chief  magistrate,  iu  terms  so  ex- 
plicit that,  had  ^ve  not  been  familiar  with  past  legislation  on  this  sub- 
ject, had  yre  not  read  the  report  or  listened  to  the  argument  of  my 
honorable  colleague,  we  would  have  deemed  it  impossible  for  any  in- 
telligent man  to  insist  that  sifch  indirect  claims  had  been  waived  or 
withdrawn.  "We  will  go  still  further  in  this  direction.  What  did  the 
tribunal  actually  do  upon  the  reception  of  the  foregoing  dispatch  f 
You  will  find  in  protocol  7— the  same  being  a  record  of  the  proceed- 
ings of  the  '27th  of  June,  1H72, — that  Count  Sclopis,  on  behalf  of  all 
the  arbitrators,  then  declared  that  the  said  several  claims  for  indirect 
losses,  to  wit,  (see  protocol  G:) 

First.  The  loss  iu  the  transfer  of  commercial  marine  to  the  British 
Hag. 

Second.  The  enhanced  payments  of  insurance. 

Third.  The  prolongation  of  the  war,  and  the  addition  of  a  large 
sum  to  the  cost  of  the  war  and  the  suppression  of  rebellion — 

Are  and  from  henceforth  shall  bo  wholly  excluded  from  the  consideration  of  the 
tiibunal,  and  directed  the  secretary  to  embody  this  declaration  in  the  protocol  of 
this  day's  proceedings. 

Mr.  Speaker,  before  this  determination  was  had,  before  it  was  ac- 
cepted as  binding  and  conclusive  by  the  high  contracting  parties, 
Gushing,  Evarts,  and  Waitehadexhaustedall  the  resourcesof  their  lore, 
their  logic,  and  their  eloquence,  far  overmatching  their  competitors, 
in  enforcing  the  justness  of  these  indirect  claims,  they  were  attent- 
ively heeded  by'willing,  admiring  judges,  but  to  no  purpose ;  the  ar- 
bitrators calmly  and  firmly  rejected  the  claim.  The  United  States 
acfpiiesced  iu  their  rejection  ;  acquiesced  in  the  understanding  that 
our  Government  was  not  to  recover  money  for  such  a  purpose.  The 
arbitrators,  in  arriving  at  their  judgment  respecting  these  claims, 
were  controlled  by  rules  contained  in  the  sixth  article  of  the  treaty 
of  Washington  and  such  principles  of  international  law  as  are  not 
inconsistent  therewith.    The  rules  are  already  quoted. 

IMMORALITy  OF  PAYLKG  REJECTED  CLAIilS. 

Now,  we  have  the  liability  of  the  British  government  in  the  prem- 
ises clearly  defined;  determined  acceptably  to  both  governments. 
The  indirect  claims  are  distinctly  announced  as  not  being  sustainable 
either  by  virtue  of  the  treaty  or  of  any  principle  of  international  law ; 
and  yet  we  confront  a  demand  that  moneys  obtained  on  account  of 
claims  which  were  specifically  allowed,  which  in  the  high  court  of 
nations  hatl  been  solemnly  adjudged  as  proper,  upon  which  the  award 
itself  was  predicated,  shall  be  appropriated,  now  that  we  have  by 


fraudulent  contrivance  and  device  obtained  control  of  it,  to  the  pay- 
ment of  claims  admittedly  unfounded,  and  wliicli  by  solemn  decree, 
pursuant  to  solenm  treaty,  have  been  solemnly  adjudged  illegal  and 
without  wan-ant  in  international  law.  What  words  can  be  employed 
in  depicting  the  infamy  of  such  an  act  ? 

The  nation,  exultant  that  such  claims  had  been  declared  illegal  and 
boasting  the  advantages  to  accrue  from  such  an  adjudication,  through 
its  Congress  enacts  a  law  in  direct  antagonism  to  the  judgment  of  the 
tribunal  and  in  violation  of  every  sentiment  of  honor  and  justice. 
^\^ly,  the  United  States  disdainfully  stated  they  desired  no  pecuniary 
award  on  their  account.  In  the  correspondence  the  Secretaryf)f  State 
(see  volume  11,  treaty  of  Washington,  page  470)  writes  that  we  should 
be  content  with  an  award  tliat  a  state  is  not  liable  in  pecuniary  dam- 
ages for  the  indii'ect  results  of  a  failiu'e  to  observe  its  neutral  obli- 
gations. 

Any  other  decision  would  have  been  prejudicial  to  the  interests  of 
our  Republic.  A  nation  whose  sphere  for  tlie  next  century  will  be  neu- 
trality and  belligerency  will  bo  its  exceptional  condition. 

CHAKACTEK  OF  THE  MAJOUnT  rROFOSmOX. 

Mr.  Speaker,  the  turpitude  of  the  pending  bill  amazes  one  who  has 
any  moral  sense  at  all :  obtaining  money  in  trust  for  the  payment  of 
claims  specifically  allowed,  and  then  employing  it  to  satisfy  claims 
specifically  disallowed.  The  sophistry  of  the  report  which  tends  to 
justify  its  conclusions  is  thinner  than  a  gossamer  wing.  It  urges  or 
tends  to  urge  that  these  claims  were  not  adjudicated  but  abandoned; 
that  in  consideration  of  their  abandonment  the  United  States  received 
certain  advantages  in  the  negotiation,  and  that  thereby  the  citizens 
who  paid  enhanced  premiums  of  insurance  made  a  sacrifice  which  it 
became  the  duty  of  the  Government  to  requite.  This  reasoning  is  delu- 
sive, were  it  true  in  itself.  It  would  have  no  applicahility  ;  for  sums 
of  money  Avould  be  diverted  and  appropriated  contrary  to  tlic  letter  of 
the  trust  money  intended  for  other  definite  purposes.  l!nt  this  is  the 
admirable  logic  of  the  report ;  aiul  if  the  arbitrators  decide  in  favor 
of  the  in<lirect  claims,  it  will  inure  to  the  advantage  of  a  few  gentle- 
men who  claim  war  preuiiunis,  but  will  pi'ejudice  us  as  a  neutral  na- 
tion and  injure  tlicreljy  forty  millions  of  ouri)eople,  if  the  arbitrators 
decide  adversely  to  tiie  indirect  claims. 

Why,  it  will  benefit  forty  millions  of  people,  and  it  will  not  inter- 
fere with  the  rights  of  the  gentlemen  Avho  claim  war  premiums.  Wo 
will  take  care  of  them,  say  the  .Judiciary  Committee;  they  shall  bo 
beneficiaries,  law  or  no  law.  llapjiy  claimants  of  the  war  picniiums  ! 
Ingrates  if  you  do  not  jiraisc  tlic  l^ord  U>v  sucli  zealous  frit-iids! 

Mr.  Speaker,  peiliaps  I  have  dwelt  overlongon  tlieciuestion  of  good 
faith  upon  tlie  pait  of  the  Government  before  stating  with  i>ropor 
j)recision  the  particular  (iiiestions  whicii  arc  to  be  settled  in  fliis  dis- 
cussion. The  diaracfer  of  f)ur  claim  against  (Jreat  JJritain,  the  mode 
of  determining  damages  line  the  United  States,  the  rejection  by  tlio 
arbitrators  of  indirect  claims,  including  claims  for  enhanced  jire- 
miunis  of  insurance,  and  tlie  acijiiiesccnce  of  tlie  high  conlracling 
parties  in  siicli  rejection,  and  finally  tliat  such  rejection  was  a  deter- 
mination forever  barring  such  claims,  as  the  language  of  the  treaty 
expresses  it,  are  facts  incontestaldy  established. 

THK  nEI.ATIOX  OK  TMK  fiOnCltXME.VT  TO  Till'.  KINK. 

The  friisteesliip  of  tlio  Government,  is  a  fact  no  less  Hiiscejdildc  of 
denionBtration,  ho  far  a.s  tliesc  claims  for  money  awards  are  concerned. 


s 

The  money  claims  of  the  Government  were  rejected,  as  already  in- 
ilicated;  they  came  under  one  or  the  other  of  the  following  heads : 

For  transfer  of  commercial  marine  to  the  English  flag. 

For  additional  cost  in  suppressing  rebellion. 

For  expense  in  pursuing  the  cruisers. 

The  United  States,  as  already  shown,  submitted  these  claims;  they 
Avere  adversely  determined  by  the  tribunal,  and  such  decision  rejoiced 
in  by  oui'  Government  as  one  specially  favorable  to  its  probable  posi- 
tion of  neutrality.  The  Government  no  longer  had  any  pecuniary 
interest  in  the  controversy. 

Such  decision  was  not  the  result  of  a  bargain,  of  shrewd  calcula- 
tion— a  tacit  waiver  for  an  equivocal  consideration  ;  it  was  the  delib- 
erate judgment  of  illustrious  judges,  representing  the  majesty  and 
dignity  of  emjiires,  upon  certain  issues  presented,  honestly  and  fairly, 
according  to  the  rules  provided  in  article  6  of  the  treaty  of  Wash- 
ington, and  the  principles  of  international  law  not  inconsistent  there- 
with. 

Tables  of  American  claims  were  presented  and  accepted  as  elements- 
of  damage  sustained  by  citizens  of  the  United  States.  Details  of 
evidence  were  analyzed  i  n  determining  which  particular  cruisers  should 
be  inculpated  and  which  exculpated.  Extreme  i^articularity  in  the 
findings  is  a  feature  of  the  award. 

No  money  award  was  made  to  the  nation.  Any  moneys  intrusted 
to  the  Government  were  intended  for  the  satisfaction  of  claims  due 
to  American  citizens,  as  determined  by  the  tribunal. 

SUMJIAUY  OF  rOlXTS  DECILiEU  BV  THE  TRIBUNAL. 

Let  the  award  be  produced  ;  let  the  decision  be  exhibited. 

After  first  declaring  cei'tain  vessels  to  be  inculpated,  holding  that 
Great  Britain  in  such  instances  failed  by  omission  to  fulfill  duties 
prescribed  in  the  first,  second,  and  third  of  the  rules  established  by 
article  6  of  the  treaty  of  Washington,  they  decide  that  the  United 
States  are  not  entitled  to  indemnity  for  costs  of  pursuing  the  cruisers ; 
they  decide  that  prospective  earnings  cannot  properly  be  made  the  sub- 
ject of  compensation,  inasmuch  as  they  deiieud  in  their  nature  upon 
future  and  uncertain  contingencies ;  they  decide  that  all  double  claims 
for  same  losses  shall  be  set  aside,  and  also  all  claims  for  gross  freights, 
so  far  as  thej^  exceed  "net  freiglits ;  "  that  it  is  preferable,  in  accord- 
ance with  the  spirit  and  letter  of  the  treaty  of  Washington,  to  adopt 
the  form  of  adjudication  of  a  sum  in  gross,  rather  than  refer  the  sub- 
iect  to  a  board  of  assessors,  pursuant  to  article  10  of  the  treaty ;  that 
$15,500,000  in  gold  be  paid  as  indemnity  by  Great  Britain  to  the  United 
States  for  the  satisfaction  of  all  the  claims  referred  to  the  considera- 
tion of  the  tribunal,  conformably  to  provisions  contained  in  article  7 
of  the  said  treaty;  that  each  and  every  one  of  the  said  claims, 
whether  the  same  may  or  may  not  have  been  presented  to  the  notice 
of,  or  made,  preferred,  or  laid  before  the  tribun.al,  shall  henceforth 
be  considered  and  treated  as  finally  settled,  barred,  and  inadmissible. 

The  claims  in  the  American  case  were  classified  as  follows,  to  wit : 

1.  The  claims  for  direct  losses  growing  out  of  the  desti'uction  of 
vessels  and  their  cargoes  by  the  insurgent  cruisers. 

2.  The  national  expenditures  in  tlie  pursuit  of  those  cruisers. 

3.  The  loss  in  the  transfer  of  the  American  commercial  marine  to 
the  British  flag. 

4.  The  enhanced  payments  of  insurance. 

5.  The  prolongation  of  the  war  and  the  addition  of  a  large  sum  to 
the  cost  of  the  Avar  and  the  suppression  of  the  rebellion. 

So  far  as  these  A'arious  losses  and  expenditures  grew  out  of  the  acts 


9 

committed  by  the  several  cruisers,  the  United  States  are  entitled  to 
ask  coinpensatiou  aud  remuneration  therefor  ht-fore  this  tribunal. 

The  claims  for  direct  losses  growing  out  of  tlie  destruction  of  ves- 
sels and  their  cargoes  may  be  further  subdivided  into  :  1.  Claims  of 
destruction  of  vessels  and  property  of  the  Government  of  the  United 
States;  2.  Claims  for  the  destruction  of  vessels  and  property  under 
the  flag  of  the  United  States ;  3.  Claims  for  damages  or  injuries  to 
persons  growing  out  of  the  destruction  of  each  class  of  vessels. 

Is  it  st  ill  an  open  question  what  claims  were  allowed  by  the  Geneva 
tribunal  * 

Verily,  that  grand  court,  where  met  republic  and  monarchy  each 
the  most  commanding  and  enlightened  on  earth,  to  have  differences 
adjusted  and  grievances  recompensed  under  auspices  so  peculiarly 
grave,  was  after  all  a  solci!in  farce.  Evarts,  Cnshing,  and  AVaite 
were  joking  when  they  iirged  indirect  claims;  they  winked  at  the 
arbitratoi-s.  and  intimatt;d  they  did  not  mean  what  they  Said:  it  was 
a  game  of  bluff,  where  certain  proofs  were  exhibited  to  create  an  im- 
pression that  certain  parties  were  to  be  paid  for  injuries,  when  in  re- 
ality the  moneys  were  intended  for  another  puri)<)se. 

How  transcendent  and  exalted  such  jiurity!  How  splendid  such 
diplomacy!  It  wouhl  be  obtaining  money  under  false  pretenses. 
Should  an  individual  in  ordinary  business  resort  to  such  methods  he 
would  b(;  condemjied  to  social  outlawry. 

rr.EA  OF  GOVERXJIEST  OWXEItSHU'  IXVAUD. 

Mr.  Speaker,  wrongs  arc  rarely  urged  unless  fortilied  by  j>lausild(i 
pretext.  Not  so  in  this  instance.  A  pretext  is  set  forth,  but  it  is 
utterly  wanting  in  plausibility.  It  consists  in  the  allegati(m  that 
the  payment  of  the  money  in  a  gross  sum  vested  the  same  absolutely 
in  the  United  States,  subject  to  their  arbitrary  disposition. 

This  position  is  not  tenable  for  an  instant. 

First.  The  act  nal  jiroofs,  weighed  by  the  arbitrators  aud  accepted  as 
pertinent  to  the  issues,  having  reference  only  to  the  losses  of  private 
individuals  by  certain  cruisers,  namely,  the  Alabama  an<l  her  tenders, 
the  Florida  and  her  tenders,  the  Shenandoah,  after  leaving  Melbourne, 
give  exact  shape  aud  direction  to  the  award. 

Second.  The  language  of  the  American  case,  where  the  exact  reasons 
are  .stated  why  an  award  of  a  sum  in  gro.ss  was  desired,  as  follows: 

They  canifstly  liopc  tlint  the  fiiliimal  will  cxciri.^c  tlio  power  coiifeiit'd  upon  it 
to  :iwar(l  :i  .smii.  in  ;:ioss.  to  lie  juiid  liydiciit  Jiiitain  to  the  Unitc<l  Stalfw.  The 
injuries  of  wliicli  the  I'liitcil  States  <iiiii|i!ain  were  eonmiitleil  many  yeais  since, 
'i'iie  iiii;;inal  wic)n;:s  to  tlie  siili'eieis  by  tlieaets  of  the  insinj^ent  ciuisers  have  btscu 
increased  by  the  delay  in  niakin;!  reparation.  It  will  be  nnjust  to  impose  further 
delay,  and  the  exiiense  of  pieMentin;i  claims  to  anofhei-  triliunal.  if  Iho  evidence 
which  the  Tnited  States  have  the  honor  to  )(resent  for  tin:  considiTation  of  thosci 
arbitrators  shall  prove  to  be  sufticii-nt  to  ei\able  thi-m  to  deterniim'  what  Muni,  in 
f;ross.  would  be  ajusl  compensation  totlie  Tnitt'd  States  for  the  iiijuiies  and  losses 
of  which  they  coi'nplain.  (Case  of  the  fniled  Slali'S,  part  (i.)  To  save  delay  and 
expense,  and  to  exhibit  penerouH  conlidence  in  our  (iovoiiiiucMt,  induced  tlie  arbi- 
tralers  to  respond  favorably  to  the  jdea. 

Third.  The  oflicial  statement  of  the  agent  of  ibe  Uniled  States, 
made  to  the  tribtmal,  as  follows  : 

The  object  of  the  treaty  is  to  indemnify  llioTTnileil  Slatis  for  the  losses  suflered 
bvth(irown  citizens,  and  not  to  impose  a  part  of  that  indemnilicatlon  upon  the 
t'nited  Slates  tbciiiselves. —  Volume  i,  page  4:i,  of  tlie  papern  niatimj  to  the  treaty  vf 
WtiKhiiigtun. 

Fourth,  'i'he  tribun.il,  having  determined  as  to  the  vessels  incul- 
pated, examined  and  serutitii/.i'd  the  schedules  and  estimalesof  in- 
dividuiil  losses  i»resented  by  the  United  States,  including  ehiims  of  in- 
surance coinpanies,  aiul,on  the  inspection  thricfif,  awarded  a  sum  in  ' 


10 

gross  which  thoy  conceivetl  to  be  sufficient  toaftbrd  a  Just  indemnity 
to  the  citizens  so  injured.  The  evidence  relating  to  this  point,  mak- 
ing it  unassailable,  is  found  in  volume  3,  page  579,  of  papers  relat- 
ing to  the  treaty  of  Washington,  containing  a  statement  of  the  agent, 
with  reference  to  certain  tables,  which  contain  a  list  of  the  vessels 
and  cargoes  destroyed  by  the  inculpated  cruisers  and  the  amount 
of  claims  in  respect  of  each,  including  the  amounts  of  insurance  there- 
on, couched  in  the  folloAviug  language  : 

The  claims  on  the  part  of  private  individuals,  thus  computed,  veritied,  and  sub- 
mitted, are  supported  hv  all  the  guarantees  of  their  good  faith  and  their  validity, 
as  well  for  their  general  amount  as  for  the  other  facts  concerning  them  which  goV- 
ernments  are  in  tlio  liabit  of  re(nuring  in  such  cases  from  their  own  citizens.  It 
thns  appears  that  Viu-se  (•(ini])utations  .show  the  entire  extent  of  all  private  losses 
which  the  result  of  the  adjudications  of  this  tribunal  ought  to  enable  the  United 
States  to  make  compensation  for. 

Fifth.  If  the  tribunal  had  not  awarded  a  sum  in  gross  the  distribu- 
tion would  have  devolved  on  a  board  of  assessors,  who  would  have 
heard  each  particular  claimant  in  such  cases  as  it  had  been  deter- 
mined by  the  arbiti'ators  England  was  guilty,  and  according  to  the 
measure  of  damage  by  them  prescribed.  That  the  assessors  would 
review  and  set  at  naught  the  decree  of  the  tribunal  from  whom  they 
borrowed  theii-  power,  to  w'hich  they  would  be  subordinate,  is  a  sense- 
less proposition. 

Yet  the  United  States  Government  wereiendowed  with  the  jirecise 
powers  that  would  have  devolved  on  the  assessors ;  none  beyond. 
The  reasons  for  imposing  such  duty  on  our  Goverimient  are  embodied 
in  the  argument  of  Amei'ican  counsel  just  quoted  from. 

Sixth.  The  action  of  the  United  States  under  direction  of  the  very 
officials  who  conducted  the  negotiations,  the  Government  binding 
itself  to  pay  the  Secretary  of  State  in  trust,  and  to  pay  interest  ou 
the  amount;  the  constitution  of  a  court  and  a  partial  distribution 
among  sufterers,  to  the  extent  of  a  decree  at  least — such  is  the 
enumeration  of  facts  out  of  which  a  trusteeship  on  the  part  of  our 
Government  arises.  Either  of  these  facts  would  suffice  to  create  a 
trust. 

THE  ARGUMENT  OF  FORCE  AND  INJUSTICE. 

The  only  argument  that  can  be  preferred  in  favor  of  the  proposition 
that  the  award  is  the  absolute  proiterty  of  the  Government  is  that  it 
is  in  the  Treasury  and  it  has  the  physical  force  to  appropriate  it.  Such 
is  the  argument  in  a  minority  report  signed  by  one  member  of  the 
Judiciary  Committee.  He  logically  demands  that  the  sum  be  covered 
in  the  Trea.sury  of  the  United  States  and  applied  to  the  payment  of 
the  national  debt.  The  majority  report,  i^lanting  itself  on  the  same 
ground,  ignoring  all  the  determinations  of  the  tribunal,  all  the  argu- 
ments of  American  counsel,  all  the  declarations  of  the  State  Depart- 
ment, sanctioned  by  the  President  and  Senate,  insists  on  distributing 
the  money,  not  among  all  the  people  who  equally  suffered  by  a  pro- 
longation of  the  war  and  the  mountainous  debt ;  not  to  the  nation's 
defenders,  by  whose  valor  a  flag  was  saved  from  pollution,  a  Kepub- 
lic  from  ab.solnte  wreck ;  not  to  the  foundation  of  grand  charities, 
where  the  maimed  soldiers,  the  widows  and  orphans  of  those  who 
have  fallen  might  obtain  succor,  but  among  the  individuals  who  paid 
enhanced  premiums  of  insurance  and  those  also  who  suffered  from 
depredations  committed  by  exculpated  steamers.  Consummate  wis- 
dom! They  say  the  fund  belongs  to  the  Government!  The  claims 
were  rejected  as  illegal,  but  they  must  be  paid.  Such  marvelous 
affection  for  a  class,  without  any  apparent  reason  for  sympathy  or 
sentiment,  is  not  comprehensible  to  ordinarj-  intelligence. 


11 

Socrates,  by  dint  of  lonj^  association,  learned  to  bear  with  Xanthippe, 
but  he  never  became  infatuated  with  her.  In  tliis  case  the  power  of 
association  is  mightier;  the  infatuation  is  complete. 

Gentlemen,  if  you  but  knew  the  attitnde  the  United  States  would 
occupy,  if  after  consenting,  acquiescing,  exulting  in  a  determination 
involving  the  rejection  of  certain  claims,  it  should  recognize  their 
validity  and  pay  them  to  the  exclusion  of  others  the  validity  of  which 
have  been  acknowledged  and  moneys  paid  with  a  view  of  discharg- 
ing the  same,  yon  would  scorn  this  bill. 

If  Congress  should  pass  this  law,  it  can  be  justly  said  that  our  ofiS- 
cials  do  not  reilect  the  average  moral  sense  of  the  people,  for  sitt;h  a 
breach  of  moral  obligation  would  not  lind  toleration  in  any  business 
community. 

Mr.  Speaker,  ef|uities  doubtless  there  arc  belonging  to  those  gentle- 
men who  ])aid  i)remiums  for  war  risks,  and  still  more  so  to  those  who 
suft'ered  direct  losses  inflicted  by  exculpated  cruisers.  I  heartily 
sj'mpathize  with  them  in  their  losses  ;  regret  that  tlie  aAvard  was  not 
Lroad  enough  to  make  their  claims  valid  ;  but  in  view  of  the  circum- 
stances they  cannot  be  entertained  lor  a  moment.  Sui)posing  Great 
Britain  made  a  demand  upon  the  United  States  Government  for  a 
claim  based  lui  iircniiums  paid  for  war  risks  by  its  citizens,  or  losses 
such  aslhave  referred  to,  what  wouldniy  honorable  colleague  advise  ? 
Would  ho  say,  O,  j'cs;  certainly;  our  citizens  were  paid  for  like 
claims,  and  therefore  we  must  respond  to  your  deuiaiuls  .'  I  tliinlc 
not.  He  would  proudly  point  to  the  treaty  of  Washington  and  the 
award  made  pursuant  thereto  and  say  we  bound  ourselves  to  abide 
forever  by  their  text.    We  hold  you  to  the  letter  thereof. 

Is  it  in  accord  with  good  judgment  to  do  that  which  will  destroy 
all  the  moral  eli'ect  of  the  treaty,  whicli  will  bring  to  ignoble  end  a 
grand  event  hitlierto  sujiposed  to  have  transpired  in  the  interest  of 
peace  and  higher  civilization  ? 

Treat  J'  of  Washington,  a  monument  to  Christian  love,  torn  down 
by  the  bad  faith  of  the  great  American  Ke))ublic  ;  its  advantages  and 
results  ruthlessly  and  lastingly  lost  to  us  all  through  our  future  years. 

Mr.  Speaker,  the  peculiar  relation  of  our  Government  relatively  to 
this  award  and  its  citizens  has  been  i)lainly  demonstrated.  If  the 
Government  is  a  trustee,  who  are  tlie  catui  que  iriiHln — a  (juestion  of 
strict  law  not  dependent  on  discretion,  but  nevertheless  eciuities  are 
not  absent.  It  should  be  judicially  determined.  From  the  beginning 
this  has  been  the  error  of  our  Government ;  instead  of  directing  specific 
claims  to  1)e  paid  it  should  have  authorized  a  competent  court  to  de- 
termine the  validity  of  all  claims,  subject  to  the  treaty  of  Washing- 
ton and  tlif  luoccedings  of  the  liibuiial  at  (iencxa,  together  withtlje 
decision  and  the  award  tliere made.  We  would  thtsn  have  escaped 
an  unseemly  scramble  in  tin-,  l(d)by.  Suitors  would  have  plied  courts, 
when;  they  belong,  inste.'id  of  liegislalures,  whos(!  busiiu'ss  it  is  to 
make,  not  to  administi'raud  conslrue  the  laws.  lIaviMggi\eu  a  (•(Uii- 
jieteut  coiirl  jurisdict  inn,  all  else  could  have  been  ])ct  tcr  done  without 
tJKiaidor  liiMilerarii;e  <(f  Urgislation  ;  but  tlie  mislake,  has  lieeu  maile, 
tlie  Hul)jcct  is  thrust  ujirui  us.  We  must  not  shrink  from  nuikiuga  just 
det«Tmiua1ii)u  withmit  relerence  to  ;iny  former  action  on  tlu^  part  of 
this  body,  excepting,  of  course,  cases  where  judgments  arc  already 
i-cnilere«l. 

The  rrnliti  que  tniHtn  are  those  who  siifiVred  directly  by  the  ravages 
connuitted  by  inculpated  cruisers,  l)cing,  tirst,  those  who  owned  the 
vessels  and  cargoes  ch-stroyed  and,  second,  those  subrogated  to  lln-ir 
ri  gilts. 

In  tiiis  remarkable  discusHion  of  a  <|ueHtion  as  to  the  cxccul  ion  of  a 


12 

trust  detinod  accurately  aud  specifically,  uoiie  among  tliose  advocat- 
ing a  violation  of  the  trust  has  disputed  the  validity  of  the  claims 
just  indicated.  The  particular  claims  ])roved  resulted  from  the 
destruction  of  ninety-four  vessels  and  their  cargoes  by  the  Alabama 
and  Florida  and  their  tenders  and  the  Shenandoah  after  leaving 
Melbourne  ;  the  value  of  tlie  vessels,  their  cargoes  and  earned  freight 
■with  interest  thereon,  the  arbitrators  after  careful  computation  an- 
nounced to  be  $15,500,000,  and  made  the  award  accordingly.  Now, 
it  seems  incredible,  in  the  presence  of  such  an  adjudication,  to  sup- 
pose any  gentleman  could  doubt  that  the  owners  of  these  vessels 
and  cargoes,  or  those  who,  having  paid  the  losses,  became  subrogated 
to  their" rights,  are  entitled  to  the  award  ;  that  the  moneys  so  paid  to 
the  United  States  are  held  in  trust  for  such  a  purpose. 

The  former  part  of  the  proposition  happily  escapes  the  censure  of 
the  Judiciary  Committee,  that  the  owners  were  so  entitled.  Will  the 
legal  skill  and  wisdom  of  the  Judiciary  Committee  enlighten  us  as  to 
the  distinction  of  owners  and  those  sirbrogated  to  the  rights  of  owners  ? 

I  suppose  it  is  no  needful  labor  to  expound  the  doctrine  of  subro- 
gation and  point  out  its  application  in  this  case.  Such  right  on  the 
part  of  underwriters  was  insisted  upon  by  American  counsel  before 
the  tribunal,  admitted  by  Sir  Roundell  Palmer,  attorney-general  of 
England,  and  Chief  Justice  Cockburn,  the  English  arbitrator.  No 
good,  conscientious  lawyer  will  deny  it. 

When  a  merchant  makes  a  contract  of  insurance  with  a  company 
he  agrees,  upon  being  jiaid  for  his  loss,  to  abandon  everything  con- 
nected with  the  thing  insured  to  the  insurer ;  to  assign  to  him  all 
right  of  I'eclamation-^legal  parlance,  the  sjyes  reciq)era)idi,  the  hope  of 
recovery — of  the  thing  lost  or  any  damage  from  the  tort  feaser  who 
occasioned  the  wrong.  The  case  reported  (8  Johnson's  Eeport,  page 
2:i~,  New  York)  cited  by  Chief  Justice  Story  with  approbation,  in 
the  case  of  Comegys  vs.  Vasse,  (1  Peters,  page  193,  United  States,)  sets 
forth  the  doctrine  intelligibly  and  with  an  aptness  so  much  in  point; 
that  its  full  force  will  be  acknowledged. 

One  question  was  whether  the  jury  was  at  liberty  to  deduct  from 
the  total  loss  the  value  of  the  spes  recuperandi.  The  court  held  they 
they  were  not.     Chief  Justice  Kent  said  : 

If  Fi-ance  sliould  at  any  future  period  ajrree  to  and  actually  uiakc  romiiensation 
for  the  capture  and  coudenination  iu  question,  tlie  Governnuut  of  the  United  State.s, 
to  whom  the  consideration  would  iu  the  tir.st  instance  be  i)ayal)le,  would  become 
trustee  for  the  party  havinj^-  tlie  equitable  title  to  the  re-inibursement,  and  this 
would  clearlj-  be  to  tlie  defendants  (the  uiiderwriters)  if  they  should  pay  the 
amount. 

This  case  has  wonderfnl  analogy  to  that  of  the  underwriters  in 
the  matter  of  the'Geneva  award  ;  it  is  an  exact  precedent;  as  such 
I  commend  it  to  the  favorable  consideration  of  gentlemen  who  advo- 
cate the  majority  report,  though  they  will  doubtless  give  as  slight 
heed  to  Kent  and  Story  as  they  have  done  to  Moses.  With  an  ardent 
desire  to  enlighten  my  honorable  friends,  I  will  cite  also  for  their  in- 
struction the  following  caseswhere  the  riglit  of  subrogation  asclaimed 
here  is  amply  vindicated  :  Randall  vs.  Cochran,  1  Vesey,  98  ;  Watson 
vs.  Insurance  Company  of  North  America,  1  Birney,  47  ;  Rogers  vs. 
Hosack,  executor,  18  Wendell,  319  ;  Hull  &  Long  vs.  Railroad  Com- 
panies, 13  Wallace,  3r>7;  Symonds  vs.  Union  Insurance  Company,  4 
Dallas,  417;  Rheulander  rs.  Insurance  Company,  4  Cranch,  United 
States,  '29. 

The  line  of  decisions  is  unbroken.  Among  the  eminent  jurists  who 
have  spoken  in  the  cases  enumerated,  are  the  linrivaled  Hardwicke 
of  England,  the  sturdy  Marshall  of  our  own  country,  maintaining  that 


lo 

the  iusiiier  occupies  towaid  the  iusiirccl  practiouliy  the  position  of  a 
surety,  aud  in  the  words  of  section  6;i5  Story's  Equity  Jurisprudence, 
"a  surety  paying  the  creditor  is  entitled  to  a  cession  of  the  debt  and 
a  subrogation  or  substitution  to  all  the  rights  and  actions  of  the  cred- 
itor against  the  delator;  niaintainiug  further,  that  the  insurance  com- 
pany, upon  payment  of  the  loss,  succeeds  to  the  rights  of  the  owner," 
that  such  company  is  entitled  to  all  the  means  of  indenniity  wliicli 
the  satisfied  owner  held  against  the  party  primarily  liable  in  this 
ca>se — England  is  such  a  party. 

The  owners  had  a  right  to  recover  from  England  in  this  case,  but 
no  remedy-.  The  United  States  furnished  such  remedy;  did  this^ud 
nothing  more,  save  accepting  the  award  iu  trust  for  the  purposes 
thereof. 

In  Comegys  va.  Yasse  it  was  held — 

That  an  aliaiulomiieiit  jiasses  to  the  iirnlerwiircrs  all  the  claims  of  the  assureil 
agaiiist  a  foivigu  ;;ovt;riiiucUt  ou  account  of  illegal  oaiiture. 

Such  was  the  clear  judgment  of  our  Supreme  Court. 

Mr.  Speaker,  in  view  of  all  these  decisions,  speaking  witli  one  voice, 
concurring  in  the  correctness  of  the  iirinciple  of  subrogation  as  ap- 
l>lied  to  cases  iiivolved  in  this  discussion,  which  atlirm  also  the  doc- 
trine of  the  civil  law,  it  is  not  strange  that  those  interested  in  secur- 
ing the  payment  of  enhanced  insurance  i>remiums  and  losses  occa- 
sioned by  exculpated  cruisers  should,  in  their  horror  for  constitutional 
tribunals  iu  whose  temides  alone  justice  is  secure,  take  refuge  in 
this  House,  and  by  appeals  to  false  sentiment  persuade  gentlemen 
■whose  manifold  duties  ])revent  them  from  critically  examining  the 
legal  features  of  the  fiuestion  to  ])ronounce  judgment,  in  wanton  dis- 
regard of  moral,  legal,  aud  international  obligations. 

There  is  but  one  conclusion  which  an  honest  jiulgment  can  reach : 
that  is  that  the  award  belongs  to  the  owners  of  the  ninety-four  ves- 
sels and  cargoes  destroyed,  or  to  those  who,  having  paid  the  owners, 
are  subrogated  to  their  rights;  and  if  the  Government  in  the  distri- 
bution of  the  award  swerves  one  hairs-breadth  from  tlie  faithful 
fulfillment  of  its  trust  it  will  be  guilty  of  an  awful  crime  against 
morality,  and  we  will  learn  Init  too  tardily  that  "righteousness  ex- 
alteth  a  nation." 

Air.  Siieaker,  appeals  to  ])rejudice  in  determiiuitiou  of  a  legal  ques- 
tion where  tlie  rights  of  all  the  jiarties  are  finally  adjudicated  are  un- 
worthy this  House;  and  should  be  visited  with  pitiless  censure,  more 
especially  wlicn  nnfoundi-d. 

To  whom  would  tliese  moneys,  if  paid  to  the  insurance  companies, 
go?     Let  us  see. 

Tlie  amount  of  insurance  chiiuLS  aggregate  the  sum  of  .$4,002,872, 
including  interest.  Mutual  insurance  companies  claim  .$'J,ti:M,*2'.>4  ; 
stock  companies  claim  .sl,:?(;H,(i'Jl»;  ten  stock  companies  claiming 
$(K»<'»,(;itl  ii;ive  failed  liy  reaxm   of  gieat  fires  in  Cliicago  aud  IJoston. 

All  tlie  ni<in<-\s  received  by  tlie  bankmiit  conijianies  will  relievii 
the  ne<-essities  of  th<>s<!  who  snll'ered  by  these  severe  lires.  Will  my 
honorable  friends  of  the  Judiciary  Committee  urg(5  CDUgress  by 
caj>ricc  and  streteli  of  authority  to  turn  away  these  funds  from  that 
undeserving  class,  all  for  the  sake  of  e(|uity  and  justice,  f 

IJut,  Mr.  Sjir-jiker,  nearly  tlnee-fonrlhs  if  not  quite  all  of  those 
claims  .•iii-  jin-fern-d  by  mutual  insurance  c(>ni])anies  ;  they,  by  organ- 
ization, viiliintary  association,  combine  and  insiin;  I  hen ise Ives  against 
loss.  lOverything  they  receive  will  lie  <livi<h-d  among  shiji-owners 
and  cargo-owners.  ])o  fliey  morally,  e(|uitably,  or  l(>gi<!illy  shift 
llieir  jiositioti  as  owners  wlien  by  this  voluntary  arrangement  they 


14 

insure  tbeniselves ;  .ire  they  less  owners  than  before  ?  Is  it  not  a  fact 
that  losses  and  profits  by  reason  of  a  species  of  partnership  are  mu- 
tually borne  and  losses  so  divided  as  to  operate  without  harshness 
upon  individuals? 

Do  not  the  gentlemen  who  made  the  majority  I'cport  understand 
that  these  moneys,  if  paid  to  insurance  companies,  would  be  returned 
to  the  very  parties  who  paid  premiums  and  war  risks  during  the 
rebellion  ;  during  the  period  when  depredations  were  committed  f 

In  New  York  State  the  statute  provides  for  such  a  distribution. 

These  are  the  uuconscionable  parties  whose  devoted  heads  the 
legislative  wrath  is  to  be  poured.  Such  are  the  people  whose  rights, 
more  ancient  than  the  Republic,  coeval  with  civilization,  are  assailed 
by  the  majority  report  of  tlie.Judici.ary  Committee.  No  sophistry  can 
mislead,  no  misreiiresentation  betray ;  the  facts  are  palpable.  But 
infinitely  more  important  than  even  these  rights  is  the  honor  of  the 
Republic. 

Mr.  Speaker,  it  is  conceded  that  the  payment  of  war  premiums  can 
be  justified  only  by  the  plea  that  the  ownership  of  the  award  vests 
absolutely  in  our  Government.  Tliey  were  excluded  from  all  consid- 
eration b^v  the  tribunal ;  no  proofs  were  proft'ered.  Now  I  beg  to  in- 
quire what  special  ground  there  is,  what  reasons  there  are,  what  cir- 
cumstances which  sanctify  these  claims  ? 

We  are  told  they  maintained  the  honor  and  dignity  of  the  flag  ; 
that  through  their  indexible  patriotism  our  commerce  survived  the 
rebellion.  Indeed,  sir,  they  are  a  class  of  heroes  whose  history  is  un- 
written. Our  annals  should  blaze  with  the  luster  of  their  deeds,  for 
I  would  gladly  yield  devotion  and  homage  to  valiant  men,  to  patriots. 

What  (lid  they  do  ?  Well,  they  paid  excessive  rates  of  insurance, 
and  in  doing  so  they  exercised  their  own  volition  ;  they  entered  into 
a  contract  without  any  one  dreaming  that  they  were  fit  subjects  for 
the  issuance  of  a  writ  dc  lunatico  inquircndo.  If  they  met  with  losses 
they  were  paid  in  full  by  the  companies;  if  not,  it  is  fair  to  assume 
these  disinterested  gentlemen  made  profit.  I  doubt  whether  they 
ever  indulged  the  spes  recuperandi;  the  thought,  the  vulgar,  gross 
thought  of  indemnity  never  entered  as  alloy  in  their  pure  patriotism. 
O,  up!  this  was  an  after-thought;  and  if  the  Judiciary  Committee 
are  j)otent  enough  it  will  eventuate  a  lucky  thought.  When  gentle- 
men are  terribly  overweiglitcd  witli  sympathy,  I  would  suggest  they 
considered  whether  the  patriotism  of  these  cl.aimants  would  not  have 
helped  the  flag  quite  as  mirch  if  it  had  been  expended  in  our  armies 
or  navies  as  in  the  peaceful  xmrsuits  of  trade. 

Mr.  Speaker,  the  cruisers  inflicted  an  equal  loss  on  every  citizen  of 
this  Rei>ublic  ;  every  soldier  was  thereby  exposed  to  additional  rigors 
and  hardships  ;  additional  graves,  additional  homes  made  cold  and 
desolate,  additional  burdens  of  taxation  imposed,  attest  tlie  loss. 

If  restraints  imposed  by  the  treaty  are  tp  be  disregarded,  if  the 
Government  decides  to  claim  it  for  itself,  then  let  it  be  distributed 
among  those  whose  valor  on  fields  of  carnage  saved  a  nation's  life  ; 
let  it  be  distributed  in  bounties  and  pensions,  or,  what  is  yet  more 
equitable,  let  it  be  covered  in  the  Treasury  and  divided  without 
partiality  among  all  the  people.  Do  not  idly  pretend,  gentlemen,  that 
your  bill  rewards  patriotism. 

In  all  I  have  said  no  disrespect  is  intended  for  individuals  claim- 
ing the  enhanced  premiums ;  they  rely  upon  the  advice  of  learned 
counsel ;  my  arrows  are  aimed  at  the  shallow  argument  which  does 
them  gross  injustice.  This  bill  enacted  into  a  law,  France  and  Eng- 
land involved  in  war ;  cruisers  fitted  out  from  the  harbors  of  this 
neutral  repul)lic ;  England  knocks  at  our  door ;  presents  claims  for 


15 

war  premiuius.  We  say,  '"Have  you  forgotten  tlie  Geneva  award  given 
pursuant  to  the  treaty  of  Washington?"  England  will  say,  "  No  ;  but 
while  I  remember  the  smart  Yankee  triek  of  the  American  Republic, 
which,  disclaiming  all  concern  about  indirect  claims,  contrived  under 
the  guise  of  a  gross  sum  to  collect  and  distri1)ute  them  all," 

What  a  spectacle  then  would  the  glorious  Republic  present !  Con- 
victed of  treachery  to  treaty  obligations,  of  misappropriatiq*  of  mon- 
eys intrusted  to  it  in  a  iiduciary  capacity.  The  tableau  would  be 
indeed  interesting  if  my  honorable  friend  and  colleague  should  hap- 
pen just  then  to  be  the  Secretary  of  State. 

Perhaps  England  would  say,  "We  discard  tlie  treaty  you  hafe  vio- 
lated ;  we  demand  damage  as  though  it  had  never  been  signed," 

What  a  pitiable  plight !  Would  my  honorable  friends  pride  them- 
selves as  wise  lawyers  and  considerate  legislators  ?  The  jieople  would 
be  entirely  indifferent  about  the  cost  or  the  size  of  their  head-stones. 

If  the  British  Parliament  should  enact  a  law  declaring  the  treaty 
of  Washington  a  nullity,  we  would  invoke  upon  it  the  execrations  of 
mankind  ;  and  yet  we  are  asked  by  this  bill  to  do  that  which  in  En- 
gland Avould  be  deemed  infamous. 

Mr.  Speaker,  there  are  among  those  claiming  enhanced  premiums 
gentlemen  who  recognize  the  meaning  of  a  sacred  compact  and  the 
national  obligation  to  respect  the  same,  who  disdain  to  receive  what 
does  not  belong  to  them,  I  refer  to  Grinell,  Minturn  &  Co,,  of  the 
city  I  have  the  honor  in  part  to  represent,  who  frankly  Avrite,  in  a 
letter  dated  January  6,  1674,  as  follows  : 

After  tho  decision  of  the  Geneva  board  of  arbitration,  disallowing  tlie  claims  for 
war  premiums,  vre  supposed  that  all  chance  of  our  receiving  anythinj;  for  those 
claims  was  ended,  and  the  idea  of  niakinnan  .allowance  to  claiinautsof  this  charac- 
ter, by  means  of  takin;;  away  from  the  insurance  companies  the  amounts  allowed 
by  tlie  Geneva  board  in  satisfaction  of  thcii-  direct  claims  for  losses  of  shi]is  and 
cargoes  vested  in  them  as  assignees,  by  abandonment  or  otherwise,  of  tlio  claims  of 
the  original  parties,  is  an  idea  which  certainly  never  would  have  occurred  to  us. 

The  letter,  a  part  of  which  I  have  just  read,  indicates  how  this 
question  addre.s.ses  itself  to  the  commercial  mind,  wliich,  in  obedience 
to  the  dictates  of  intelligent  .self-interest,  always  recognizes  the  full 
force  of  honesty  and  integrity  in  all  business  transactions. 

In  the  court  of  Alabama  commissioners,  in  the  case  of  West  vs.  Tho 
United  States,  this  straightforward  language  is  employed: 

Does  not  national  courtesy  ami  iiood  faith  reiiuire  of  us  to  sujiposi'  that  Congress 
in  (Tf^tinj;  the  court  never  intended  we  shoulil  distribute  the  fuml  other  than  for 
the  puiposes  Ciieat  JSritain  suppo.sed  slie.  wa«  {laying  it  /  Su]ipose.  for  instance, 
( 'iiMi^ress  hitil  clicnen  to  keep  half  the  fund  and  convert  it  into  the  Treasury  of  the 
iiutinii,  or  had  directed  this  eourt  to  ilislribute  it  among  tliose  wlio  liad  been  injured 
by  the  terror  and  alarm  <aused  liy  tlie  insurgi'Ut  cruisers,  or  amoiiK  tlm.so  who  hail 
hiiirered  loss  by  the  depredalioiis  of  lebel  cruisers  idher  than  the  .Vluhamn,  Florida, 
and  Shenandoah.  In  Miuh  cases  would  not  Great  Uritnln  have  had  cause  to  complain 
tliat  HJie  hail  been  misled,  overreached,  deceived  .'  Would  our  (ioverninenl  have 
been  acting  in  gixid  faith  in  making  such  disposition   of  this  fund  .' 

Such  were  the  jicrt incut  c|ucries  that  occnred  to  tlie  judicial  mind 
accustomed  to  weigh  and  determine  under  llie  samtion  of  an  oatli! 
Such  are,  not  the  jierlinent  (|neries  that  occur  to  the  minds  of  tiie  ma- 
jority of  our  .hidieiary  Comiiiitlee,  which  I'nr  their  sakes  I  regret. 
The  .Indiriaiy  < 'uiiimit  tee  at  least  respects  its  iiredecessor  in  tlie 
r<irtv-tliird  Congiess.  Wliere  (lie  mighty  Hiiller  led,  it  fears  not  to 
follow. 

The  former  committee  are  entitled  to  the  cn-dit  of  originality,  but 
what  JKiiior  will  posti-rity  aw.inl  to  I  he  presi'iit  eomiiiiltee  F 

Mr,  ."^pe.'iker,  the  m.'ijoiity  report  is  jiredicated  iip<iu  a  false  notion 
that  the,  eiaiMisin  <|iie.Htioii  ar<i  agaiiiMt  tiie  United  States.  Wherefore 
their  warrant  for  lliin  coiieUirtioii  f     The  l.'iiite<l   States  (Hivenimeiit 


16 

coiniiiittt'd  no  wiont>'  iu  tbo  premises  ;  no  damage  occurred  Iiy  reason 
of  their  jioglect.  Tiie  wrongs  done  for  which  tlie  award  w;is  made 
resulted  from  the  negligence  of  P^ngland.  All  claims  were  against 
England  ;  the  claimants,  nnahle  individually  to  press  their  demands 
against  a  foreign  government,  invoked  their  o\vn  Government  to  act  as 
sponsor  and  agent.  On  the  2i>d  of  Septemljer,  1865,  the  Department  of 
State  isAed  a  circular  in  the  following  form: 

Dei'artjiext  of  State, 
Washington,  September  22,  18G5. 
Citizens  of  tho  TTnited  States  having  claims  ajjainst  foreign  governments,  not 
foiiudeil  in  ((intiact,  wliicli  may  have  oiigiiiatecl  .since  tlie  8th  of  Pebruary,  1853, 
will,  without  any  ihlay  which  "can  be  avoided,  foiward  to  this  Depailmen't  state- 
ments of  tlie  saiiie,  under  oath,  accompanied  by  the  j)i'opeT  proof. 

Itis  proper  that  the  interposition  of  this  Government  with  the  foreign  government 
against  which  tho  claim  is  presented  should  be  requested  in  express  terms,  to  avoid 
a  possible  objection  to  the  Jurisdiction  of  a  future  commission  on  the  ground  of  tho  *l 

generality  of  the  claim.  Clainjs  of  citizens  of  tho  United  States  against  this  Gov- 
ernment growing  out  of  the  late  iasuiiection  are  under  cognizance  of  other  De- 
partments, of  the  Court  of  Chiinis,  or  are  a  subject  for  an  .appeal  to  Congress. 

Were  the  majority  of  the  Judiciary  Committee  cognizant  of  this 
letter  ?  Did  they  note  the  manner  in  which  the  claims  were  des- 
ignated; the  distinction  made  between  claims  against  Great  Britain 
and  claims  against  the  United  States  ;  the  instructions  given  to  such 
claimants?    If  so,  what  an  astonishing  assumption  that  the  obliga-  ',;;i 

tion  to  jiay  the  claims  in  question  devolved  upon  our  Government  as  ^> 

such  rather  than  upon  it  as  the  custodian  of  ;i  fund,  charged  with  a  'M 

duty  in  making  disposition  thereof!  cif 

The  treaty,  the  proceedings  before  the  tribunal,  the  records  of  the  J 

Secretary  of  State,  the  action  of  Congress,  the  arguments  in  Ameri-  ' 

can  case,  the  nature  of  the  matter  iu  itself,  are  so  many  proofs,  clear 
and  explicit,  to  the  effect  that  the  award  wao  made  to  satisfy  the  ;».■ 

claims  of  American  citizens  against  Great  Britain,  and  the  United  '<  '■■ 

States  were  intrusted  with  the  task  of  custody  and  distribution. 

Mr.  Speaker,  a  commanding  duty,  one  of  nuequaled  dignity  and 
cousequence,  awaits  our  performance.  The  rights  of  the  respective 
jjarties,  whose  demands  for  this  award  depend  upon  our  action,  have 
already  been  determined  by  irreversible  decree.  We  have  yielded 
thereto  our  acquiescence  and  expressed  therewith  our  satisfaction. 
We  have  accepted  a  trust  subject  to  its  conditions.  If  we  fail  in  ex- 
ecuting it,  so  as  to  escape  the  whisper  of  censure,  better,  a  thousand-  ■■,'k 
fold,  that  the  treaty  of  Washington  had  uever  been.  "^ 

What  is  ill-gotten  rarely  thrives.  Arbitration  would  henceforth  be 
spurned  and  discarded  as  a  mode  of  adjusting  international  difficulties. 

A  republic  would  sink  into  deserved  obloquy,  the  companion  of 
semi-barbarous  nationalities,  whose  distinction  consists  in  wanton 
disregard  of  sacred  treaties ;  a  shame  on  our  part  infinitely  multiplied 
because  of  the  crime  against  humanity  involved  in  provoking  a  fre- 
quency of  wars. 

Whatever  scrupulous  honor  shall  demand  or  strict  propriety  sug- 
gest, let  that  be  done.  If  rejected  claims  must  be  i>aid,  let  some  other 
fund  be  provided.  The  Geneva  award  is  English  money,  not  ours. 
To  u.se  it  as  our  own  would  be  turpitude.  Law,  not  caprice,  should 
be  the  oracle. 

That  our  glory  may  be  dimmed  by  no  nnworthiness  ;  that  the  treaty 
of  Washington  may  be  a  presage  of  a  holier  and  happier  futurity; 
that  it  may  be  hailed  by  all  tho  peoples  of  the  earth  as  a  rich,  sure 
ydedge  of  enduring  peace  among  tho  nations,  let  this  last  act  on  our 
part,  the  execution  of  the  trust,  be  honestly,  piously  performed. 


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